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1 

2 

3 

32X 


1 

2 

3 

4 

5 

6 

J 


-■f 


't 


SELECT  CASES 


IN  THE  LAW 


@t 


PERSONAL    PROPERTY. 


WITH  ANALYSIS^AND  REFERENCES  TO 

OTHER  CASES  .dirflSfl5(M^ 


BV 


C 


PROFESSOU    OF 

MIS 
AM 


JOHN  D;  LAWSON,  LL  D. 

COMMON   LAW    IN   THE   INIVEKSITY  OF  THE   STATE  OF 
5SOUKI,      AND      AUTHOR      OF     "THE     PKlNCirLES     OF     THE 
MERICAN  LAW   OF  CONTRACTS"   AND  "BAILMENTS,"  ETC. 


ns-i^ 


COLUMBIA,   MO.  : 

E.  W.  STEPHENS,  PUBLISHER. 
1896. 


',S!$ti!K'?mmiiiM^iMi^'kt 


^ 


I 


1  cA 


u-'^ 


COPYRIGHT,  1896, 

By  JOHN  D.  LAWSON. 


^ 


-:  4'  V  't. 


PREFACE. 


This  collection  of  cases  on  the  Law  of  Personal 
Property  is  prepared  for  the  use  of  students  in  Law 
Schools.  In  the  course  of  my  lectures  on  this  subject, 
during  the  past  year  or  two,  I  have  become  convinced 
that  such  a  book  would  be  of  great  use,  not  only  in  my 
own,  but  in  other  class-rooms.  It  w'll  be  observed  that 
the  subject  of  Sales  is  included  in  my  analysis  and  in 
the  cases  here  presented.  I  am  of  opinion  that  it 
belongs  here, — as  one  of  the  modes  in  which  title  to 
PevKonal  Property  is  or  is  attempted  to  be  obtained— 
rather  than  (although  it  is  usually  so  treated  in  the 
text-books)  as  a  branch  of  the  Law  of  Contracts. 

J.  D.  L. 


mmM 


TABLE  OF  CASES. 


PAGE. 

Allan!  v.  CJreasert,  61  N.  V.  i ■\"<) 

American  Print  Works  v.  Lawrence,  2?  N.  J.  (L.)  590 ?<> 

Andrews  v.  D'.irant,   1 1  N.  Y.  35 343 

Arnold  V.  Delano,  4  Cnsli.  33 '^96 

iliilK-ock  V.  Honnell,  So  N.  V.  244 703 

liailev  V.  Hudson  River  R.  Co.,  49  N.  V.  70 49<' 

Haldey  v.  I'arker,  2  15 .  &  C.  37 39^ 

r.arker  v.  ]:>insmore,  72  Pa.  St.  427 5.S7 

Barnard  v.  Campbell,  55  X.  V.  456.  5S  Id.  73 562 

Harnard  v.  Kellogg,  10  Wall.  383 ••    f'i3 

Hartlette  V.  Crittenden,  4  McLean,  300 267 

Basket  V.  Hassell,  107  U.  S.  602     3^4 

Benedict  v.  .Schaettle,  12  Ohio  St.  515 "08 

Bird  V.  Munroe,  66  Maine,  337 4^6 

Bradford  v.  Manly,  13  Mass.  139 ^.S" 

Bretz  V.  Diehl,  117  Pa.  St.  589..   334 

Brewster  V.  Hill,  I  N.  IL  350 -9 

Brown  V.  United  States,  8  iTranch,  no 169 

Bryant  V.  Letever,  4  C.  P.  D.  172 10 

LMtler  V.  Thomson,  92  U.  S.  412 4i7 

Bvrne  V.  Jansan,  50  Cal.  624 607 

California  Fig  Syrup  Co.  v.  Putnam,  66  Fed.  Rep.  750.  69  Id.  740..   307 

Caulkins  v.  llellman,  47  N.  Y.  449 4oi 

Cciluloid  Mfg.  Co.  V.  Cellonite  Mfg.  Co.,  32  Fed.  Rep.  94 296 

Chapman  v.  Shepard,  39  Conn.  413 455 

Chaney  v.  Hoxie,  143  Mass.  592 313 

Coggill  V.  Hartford,  etc.,  R.  Co.,  3  Gray,  545 553 

Cole  V.  Berry,  42  N.  J.  (L.)  308 , .S47 

Commonwealth  v.  Fleming,  130  Pa.  St.  13S 494 

Cooke  V.  Millard,  65  N.  Y.  352 378 

Cross  V.  O'Donnell,  44  >«•  Y.  66i. 4o6 

Cnshing  V.  Breed,  14  Allen,  376 483 

Daniels  V.  Pond,  21  Pick.  367 9° 

Dearborn  v.  Turner,  16  Maine,  17 5o6 

Drury  v.  Young,  58  Md.  546 434 

D'.niiont  V.  Kellogg,  29  Mich.  420 '8 

Durfee  V.  Jones,  11  R.  I.  588 182 

Diistan  V.  McAndrew,  44  N.  Y.  72 636 

llarl  V.  Van  Alstine,  8  Barb.  630 39 

V 


J 


VI 


TAIILE    or    CASES. 


PAGE. 

..  559 
..  412 

...   577 
119 


Easter  V.  Allen,  S  Allen,  7 

Kdf^erton  v.  Hoilge,  41  Vt.  C)?^ 

Kichliolz  V.  Haniiister,  17  C.  H.  (N.  i^O  7°^ 

Farrar  v.  Stackpole,  6  Maine,  154 "^^ 

Filley  v.  Fussett,  44  Mo.  16S 

Fleet  V.  Hegeman,  14  Wend.  43 

Folsotn  V.  Marsti,  2  Story,  100 

GatViulcl  V.  Ilupgood,  17  Pick.  192.... 

Gerst  V.  Jones,  3.!  Gratt.  518 

Giroux  V.  Stedman,  145   Mass.  439 

Goddard  v.  Hinney,  115  Mass.  450  

Goddard  V.  Wine  lell,  86  Iowa,  71 

Gould  V.  Rourgeois,  51  N.  J.  (L.)  361 

Gregory  V.  Stryker,  2  Denio,  62S 

Griffith  V.  Fowler,  18  Vt.  390 

Gross  V.  Kierski,  41  Cal.  in 

Hamaker  V.  Blunchard,  yo  Pa.  St.  377 

Haslem  v.  Lockwood,  37  Conn.  500 

Hatch  V.  Oil  Co.,  100  U.  S.  124 

Hawkins  v.  Pemberton,  51  N.  Y.  19S 

Heddericli  v.  Smith,  103  Ind.  203 

Hendersbn  v.  Cardwell,  9  Baxt.  389 

Hesseltine  v.  Stockwell,  30  Maine,  237 

Hickey  v.  Hazard,  3  Mo.  App.  480 

Higgins  V.  Kusterer,  41  Mich.  318 

Hoffman  v.  Carow,  22  Wend.  285 

Hosmer  v.  Wilson,  7  Mich.  294 

Hoxie  V.  Chaney,  143  Mass.  592 

Hubbard  v.  Town,  33  Vt.  295 

Hull  V.  Hull,  48  Conn.  250 

Hunt  V.  Wyman,  100  Mass.  19S 

Huthmacher  v.  Harris,  38  Pa.  St.  491 

Isle  Royale  Mining  Co.  v.  Hertin,  37  Mich.  332 

Janney  v.  Sleeper,  30  Minn.  100 

Jewett  V.  Dringer,  30  N.  J.  (Eq.)  291 

Jones  V.  Earl,  37  C.il.  630 

Kellogg  V.  Lovely,  46  Mii^h,  131 

Kinsell  V.  Billings,  3.S  Iowa,  154 

Kountzv.  Kirkpatrick,  72Pa.  St.  376 

Lawton  v.  Steele,  152  U.  S.  134 

Lee  V.  Griffin,  I  B.  &  S.  272 

Livermore  V.  White,  74  Maine,  45:: 

Loomis  V.  Bragg,  50  Conn.  2 j8 

Low  V.  Pew,  108  Mass.  374 

Lyon  V.  Bertram,  20  How.  149 

Mugruder  V.  Gage,  33  Md.  344 ^^" 

Manning  v.  Mitcherson,  69  Ga.  447 

McConnell  v.  Hughes,  29  Wis.  537 


lOl 

271 
153 
643 
655 
375 
23 
58^ 
207 

510 

573 
189 

174 
44.S 
626 

15.=; 

88 

236 

I.S9 
,  92 

.  514 
,  O91 

•  313 
.   S 

•  349 
.  507 

•  177 
.  210 
.  659 
.  232 

,.  716 
. .  204 
..  134 

•  •  358 
■  •  49 
••  371 
..  185 
••  339 
.•  353 
•■  734 

66 1 


356 


TAllI.K    OK    CASES. 


vH 


PACK. 

. .  559 
..  4'^ 

..  577 

..  lU) 

..  2S4 

.  .  lOI 

..271 
..  153 
..  643 

.  (>5S 
...  375 

•  ■  23 
...  5«^ 

. .  207 

..  510 
. ..  573 
...  1B9 
...  174 
...  445 
...  626 

...  155 
...  8S 
...  236 
....  I.S9 
. . . .  9- 
....  514 
.  ..  691 
...•  313 
....   S 
....  349 
....  507 
....  177 
....  210 
....  659 

232 

....  716 

204 

134 

35^-^ 

49 

371 

1S5 

339 

353 

734 

66i 

167 

356 


PACE. 

McCormick  v.  KcUv,  2S  Minn.  13.:; ^'J 

Meneely  v.  Meneely,  6j  N.  Y.  4:7 290 

Miller  v.  riiinib,  6  Cow.  665 "43 

Morgan  v.  Cox,  22  Mo.  273 35 

Morrison  v.  Semple,  6  Hinney,  94 ' 

Xewhall  v.  Central  i'ac.  R.  Co.,  51  Cal.  345 7-o 

Norrington  V.  Wright,  IIJ  U.  S.  188 666 

Oliver  V.  Hunting,  44  Cii.  Div.  205 44» 

Osgood  V.  Lewis,  2  II.  &  S.  495 S89 

Ottiiinwa  Woolen  Mills  Co.  v.  Iluwley,  44  Iowa,  57 127 

Parker  v.  Mise,  27  Ala.  4S0 95 

Pai.lv.  Reed,  52  N.  H.  13''^ ■♦^^' 

Pierce  v.  Proprietors,  10  R.  I.  227 ^°5 

Pierson  v.  Post,  3  Caines,  175 ^^4 

Pratt  V.  Bryant,  20  Vt.  333 ^33 

Prescott  V.  Locke,  .i;i  ^'.  '1-94 '*^^ 

Providence  Bank  V.  Billings.  4  Pet.  560 59 

Randall  v.  Newson,  2  Q.  B.  O.  102 ^34 

Rogers  V.  Woodruff,  23  Ohio  St.  632 508 

Sanborn  V.  Flagler,  9  Allen,  47.; 4" 

Scott  V.  Wells,  6  W.  &  S.  357 W 

Scudder  v.  Worster,  II  Cush.  573 7^^ 

Seitz  v.  Brewers'  Ref.  Mach.  Co.,  141  U.  S.  510 599 

Shaw  V.  Cooper,  7  Pet.  292 •     ^39 

Shawhan  v.  Van  N'est,  25  Ohio  St.  490 079 

Silsbury  V.  McCoon,  3  N.  Y.  379 ^^'^ 

SUu-r  V.  Sample,  71  111.  430 ^i 

Smith  V.  Smith,  51  N.  H.  571 319 

Snedeker  V.  Warring,  12  N.  Y.  170 "- 

State  V.  O'Neil,  48  Vt.  140 S^^ 

State  Savings  Bank  V.  Kircheval,  65  Mo.  6S2 123 

Tisdale  V.  Harris,  20  Pick.  9 368 

Tufts  v.  Sylvester,  79  Maine,  213 7l8 

Van  Leuven  V.  Lyke,  I  N.  Y.  513 46 

Van  Ness  v.  Pacard,  2  Pet.  137 ^45 

Waddingham  v.  Loker.  44  Mo.  132....  ^ 5 

Watts  V.  Ward,  I  Ore.  86 ^9^ 

Wentworth  v.  D.iy,  3  Mete.  352 201 

West  River  Bridge  Co.  v.  Dix,  6  How.  509 65 

Wetherbeev.  Green,  22  Mich.  311 ^'^ 

Wheaton  v.  Peters,  8  Pet.  591 ^52 

Whitcomb  v.  Whitney,  24  Mich.  486 465 

Whitmarsh  v.  Walker,  1  Met.  313 7^4 

Wbittingham  v.  Ideson,8  U.  C.  L.  14 9 

Wing  v.  Merchant,  57  Maine,  383 321 

Winslow  v.  Merchants'  Ins.  Co.,  4  Mete.  310 136 

Wolcottv.  Mount,  38  N.J.  (L.)  496 621 

Wood  V.  Pierson,  45  Mich.  313 •  •   '94 


T5?iWf^ 


Ju 


ANALYSIS  OF  TIIF.  SUBJFXT 


AND 


TABLE  OF  CONTENTS. 


.■)• 


CHAPTER  I. 
The  Characteristics  ok  Pf.usonal  Propkiitv. 

'""i^'^The  mennins  of  "propevty"-Absol«te  property. 

]\ron-ison  v.  Scinplc,  6  IJiiincy,  94 

3.    Quiilified  property— in  the  lislH- 

Hnbhard  v.  ro'vn,  33  Vt.  295 

Qualifi'^d  property— In  the  air. 

Bryant  v.  Lefcvu;  4  C.  P.  D.  172 

Qunlitied  propcrt) — In  the  water. 

Duimnt  V.  Kcllo^^g,  29  Mich.  420 

Qualified  property— In  wild  animals. 
Picrson  V.  Post,  post,  S  35. 
Afaiinim;  V.  Mitchcrson,  post.  §  36. 
Test  of  real   as   distinguished    from  personal  prop- 
erty,     (i)  Immovability. 

Goddardv.   \VinchcH,'i(>lo\s;\,^\ 

Test  of  real   as   distinguished    from   personal  prop- 
erty.    (2)   Duration  of  time  of  enjoyment. 

Brc-xstcr  v.  Hill,  1  N.  H.  350 

Property  changing  character. 

Slater  V.  Sample,  71  i^^- ^r:) 


8. 


10 


18 


23 

39 
31 


CHAPTER  II. 

The  Limitations  to  the  Ownership  of  Personal 

Property. 
,.    Limitations    to     absolute   ownership— Must    not   be 
used  so  as  to  injure  others. 

Morgan  v.  Cox,  22  Mo.  273.     ...-•>•• 
viii 


35 


1 


ANALYSIS    OK    THIi    SUHJICCT 


ix 


BjnCT 


'ropkrtv. 


property. 


•     •     • 


lO 


i8 


rsonal  prop- 

23 

n-sonal  prop- 

Mlt. 

29 

31 

OF  Personal 


•Must   not   be 


35 


"io.    Siimu— Injuries    by   wild    aninuilb    and    liability   of 

owner. 

Earl  V.  Van  Ahtinc,  S  Rarb.  630 39 

II.    vSame Injuries  by  domestic  animals  and  liability  of 

owner. 

Van  Lcuvcnv.  Lykc,  i^.\.  $\T, 4^ 

13.    Same— The  police  power  of  the  state. 

La-x'ton  v.  Strr/c,  152   U.  S.  134.      .       .       ...     49 

13.  Same— The  taxing  power  of  the  state. 

Providence  Bank  v.  Billiui^s,  4  Pet.  560.       .       .     59 

14.  Same — The  power  of  eminent  domain. 

West  River  Briifi^e  Co.  v.  Dix,  6  How.  509    .     .     65 

15.  Same— The  case  of  public  necessity. 

American  Print    Works  v.   Laivrence,  23  N.  J. 

(L.)S90 76 

16.  Same — The  claims  of  creditors. 

Waddinghani  v.  Ln^er,  44  Mo.  132.      .      ...     83 


CHAPTER  III. 

Some  Peculiar  Classes  of  Personal  Property. 

17.    Emblements. 

Henderson  v.  Cardivell,  9  Bayt.  3S9.      .      . 

iS.    Manure. 

Daniels  V.  Pond.  31  Pick.  367 

19.  Ice. 

Higgins  V.  Kustcrcr,  41  Mich.  31S.      .      . 

20.  Tame  animals — The  dog. 

Parker  v.  Mise,  27  Ala.  480 

21.  Tame  animals— The  cat. 

Whittingham  v.  Ideson,  S  U.  C.  L.  J.  14    • 
23.    Tame  animals — The  oyster. 

Fleet  V.  liegeman,  14  Wend.  43 loi 

23.  Mortuary  property. 

Pierce  v.  Proprietors   of  Szvan  Point   Cemetery, 
10  R.  I.  227 105 

24.  Fixtures — Acutual  annexation.  •  ^ 

Snedekerv.   Warring,  \z^.^ .  ^^o     .      .     .     .112 


88 
90 
92 

95 
96 


J 


J 


ANALYSIS    OF    THE    SUBJECT. 


SECTIOV. 

25.  Same — Constructive  annexation. 

Farrar  V.  Stctckpoie,  o'i^Uxmc,  .54 

26.  Same — Purpose  and  use  as  test. 

State  Savi?tgs  Bank  v.  Kirchevel,  65  Mo.  6S2.      . 

27.  Fixtures — Intention  of  parties  as  the  test. 

Ottuiniva  Woolen  Mills  Co.  v.  Hawlcy,  44  Iowa, 


57 • 

2S.    Same — Between  heir  and  executor  or  admnustrator. 

Kinsellv.  Billings,  y^\.o^i\,  \^\ 

Same — Between  i-nr>rtgapfor  and  mortgafjee. 

Winslow  V.  Merchants'  Ins.  Co.,  4  Mete.  310. 
Same — Between  vendor  and  vendee. 

Miller  v.  Pinmh,  6  Cow.  665 

Same — Landlord  and  tenant — Trade  fixtures. 

Van  Ness  V.  Pacard,  ^Vct.  xi'J 

Same — Domestic  fixtures. 

Gaffield  V.  Hapgood,  i>]  V\d^.  192 

Same — How  right  to  removal  lost. 

Hedderich  v.  S?nit/i,  103  Ind.  203 


29. 
30- 

32 

33 


119 

127 

134 
136 

143 

i4r 
153 
155 


CHAPTER  IV. 

The  Modes  of  Obtaining  Title  to  Personal  Property. 

I.     By  Original  Acquisition. 

(a)   occupancy. 

34.  Original  occupancy  in  gcofral. 

Hickeyv.  Hazard,  3  Mo.  (App.)  4S0.      .       .       .159 

35.  Same — Capturing  wild  animals. 

Piersottv.  Post,  iC-MW&'i,,  175.      .      .     •      .      •     •    164 

36.  Same — Wild  animals  regaining  liberty. 

Manning  v.  Mitchcrson,  69  Ga.  447 167 

37.  Goods  captured  in  war. 

Broxvnv.  United  States,  S  Cranch.  no.      .      .     .    169 

38.  Goods  abandoned  by  owner. 

Haslem  v.  Lockivood,  37  Conn.  500 174 

Huthmaclurv.  Harris,  i%V?,.'S>t.  \c)\.       .      .     .177 


•  •  • 


119 


55  Mo.  6S2.     . 

1^3 

est. 

■wlcy,  44  Iowa, 

. 

127 

administrator. 

134 

japjee. 

.  Mete.  310.     . 

.36 

143 

fixtures. 

h: 

153 

155 

RSONAi.  Property. 


tion. 


4S0. 


147' 


h.  1 10. 

JO. 

t.  491. 


•159 
.    164 

.    167 

.   169 

■   '74 

•   177 


ANALYSIS    OF    THE    SUBJECT.  xl 

SECTION. 

39.  Lost  property — What  is  and  what  is  not. 

Durfecz'.Joncs.   .  i  R.  I.  5S8 1S3 

Livermorc  v.   White,  74  Maine,  452 1S5 

40.  Ri<i;hts  of  finder  of  lost  property. 

Hamakcr  v.  Blanchard^  90  Pa.  St.  377.      .      .     .    189 

41.  Finder's  right  to  reward. 

Watts  V,  Ward,  i  Ore    86 191 

42.  Finder's  lien  for  expenses. 

JFi?Ofi?  f.  P/tv'5ow,  45  Mich.  313 194 

43.  Finder's  lien  for  offered  reward. 

Went-juorth  v.  Day,  3  Mete.  353 201 

(b)  accession. 

44.  Products  connected  with  real  estate — Emblements. 

Henderson  v.  Cardzvell,  ante,  §  17. 

45.  Products  connected  with  personal  estate — When  new 
product  arises — The  young  of  animals. 

Kellogg  V .  Lovely ,  \G '^M\c\\.  131 204 

46.  Where  addition  is  made  to  old  product — With  owner's 
consent. 

Gregory  v.  Stryker,  2  Denio,  62S 207 

47.  Same — Without  owner's  consent. 

Isle  Royale  Mining  Co,  v.  Hertin,  37  Mich,  332..   210 

48.  When  identity  of  article  has  been  changed. 

Wctherbee  V.  G/'ccw,  22  Mich.  31 1 216 

Silsbiiry  v.  McCoon,  3  N.  Y   379 ,  224 

49.  Confusion  of  goods  through  frp.ud. 

yewettv,  D>-inger,  30  N.  J.  (Eq.)  291.     .     .     .  232 

50.  Confusion  of  gocd«  through  accident,  mistake,  or  by 
consent. 

Pratt  V.  Bryant,  20  Vt.  333 233 

51.  Same — Rule  where  goods  are  of  equal  value. 

Hesscltine  v.  Stockzvell,  30  Maine,  237.       .       .     .   236 

(C)    INTEI.T.ECTUAL    LABOR. 

52.  Patents. 

Sliaxv  V.  Cooper,  7  Pet.  292 239 

53.  Copyrights — The  right  a  statutory  one. 

Wheaton  v.  Peters,  8  Pot.  591 252 


H 


X|i  ANAI-VSIS    OK    THE    SUBJECT. 

SECTION.  .  1       ..    • 

CA.    Same— Publication,  what  is  a. 

narthtte  v.  CrittciJcn.  4  McLean,  300.     .     .    _•  2(37 

55.  Same-What  is  an  infringement-Property   m  pn- 

vate  letters. 

Fo/soin  V.  Marsh 

56.  Trade-marks— Consist  of  what. 

Filhy  V.  Fassctt,  44  Mo.  189 + 

.-«     Same- Names  of  individuals. 

Mcncclyv.  Mc>icc/y,62^.\.  \^-l -> 

=  S.    Same— Descriptive  words. 

'  a.//../././  ^ffg.    Co.  V.    CcUomtc  MJg.   Co..  3^  ^  ^ 

Fed.  Rep.  94 ^^ 

CO.    Same- Deception  in  use  of.  ^^  -r.    , 

Rep.  /so;   69  Id.  740-       ••:•■••■   ^°' 
60.    Assignability  of  trade-mark-Sale  of^good  will. 

Jloxic  V.    Chancy;    Chancy  v.  Hostc,  143  Mass. 

•        ■        •        •        •        "        *     o     o 

592 

2.     By  Act  of  the  La-o. 
61.    Title  acquired  by  judgment. 

Smith  V.  Smith,  5t  N.  H.  571 3^9 

".     By  Act  of  the  Parties. 

(a)  by  gift.  . 

62.   Gifts,  inter  vivos.  ,  .  ^  ,21 

Wing  V.  Merchant,  SI  ^^'^'"''^^  ^^^'      '      •      '     '  ^^'^ 

6v    GMt^,  cansa  mortis. 

Basket  V.  Hassell,  107  U.  S.  602 3-4 

(n)    BY  SALE. 

7.      The  General  Principles. 

64.  Sale  or  bailment.  .  . 

Bretzv.Diehl,ii1^^-^^'S^9 ^34 

65.  Sale  or  lease. 

Loomis  V.  Bragg,  50  Conn.  228 33y 


^Lm 


ANALYSIS    OK    THE    SUnjFXT. 


xiii 


SECTIOV. 

66 


267 

rty  in  pri- 

.     .     .     •   271 

.      .     .     •  284 
.     .     .     •   290 

>.   Co.,  32 


.  296 


m,  66  Fed. 

.d  will. 

,  143  Mass. 


307 


313 


319 


.       .       .      .   321 


324 


s. 


334 
339 


67. 


68. 


69. 
70. 

72. 

73- 

74- 

75- 
76. 

77- 
78. 

79' 
So 

81 


Executory  sales. 

A/zc/rczi's  V.  D/tra/f/,  ii"^.Y.  T,^ 343 

Tliin<j;s  in  potential  existence. 

Bu/l  V.  Hull,  48  Conn.  250 349 

Loxv  V.  Pczv,  108  Muss.  374 353 

The  price. 

McCoitndl  V.  H/iglics,  2C)\\'\^.  '■^^■J 356 

Koutitz  V.  Kirkpatrick,  72  Pa.  St.  376.       .      .      .  358 

2.      The  Statute  of  Frauds. 

What  are  goods,  wares,  and  merchandise. 

Tisdale  V.  Harris,  20  Pick.  9 368 

Contracts  for  work,  labor,  and  materials — The  Eng- 
lish doctrine. 

Lcev.  Griffin,  i  B.  &  S.  272. 371 

Same — The  Massachusetts  doctrine. 

Guddard  V.  Biuncy,  115  Mass.  450 375 

Same — The  New  York  tloctrine. 

Cooke  V.  Millard,  65  N.  Y.  352 378 

The  value. 

Bald cy  V.  Parker,  2  Vi.  hZ-l-, 396 

Acceptance  and  receipt  both  necessary. 

Caulkius  V.  Hcllman,  47  X.  Y.  499 401 

Delivery  to  carrier  a  receipt. 

Cross  V.  O'DonnclL  <\-\^.\.  66\.       .       .       .      .406 

But  not  an  acceptance. 

Allard  V.  Greascrt,  6iyi.Y.  i.     ......  409 

Part  payment. 

Edgertonv.  Hodge,  a^i\\..6'j6 412 

The  note    or    memorandums-Must    show    complete 
contract — Signing  by  broker  as  agent. 

Butler  V.  Thomsou,C)Z\j.'^.  \\2 417 

Sanborn  v.  Flagler,  9  Allen,  474 422 

Same — At  what  time  may  memorandum  be  made. 

/ym/z'.  J/?/«r<?6',  66  Maine,  327.       .       .       .      ,      .426 
Same — Need  not  be  delivered — How  signed. 

Drury  v.  I'oung,  58  Md.  546 434 

Same Oral  evidence  to  connect  several  documents. 

Oliver  V.  Hunting,  44  Ch.  Div.  205 440 


„;.„)U^^,A_^JJ'" 


Mail 


XIV 


ANALYSIS    OK    THE    SUBJECT. 


S3- 


J.      The  Transfer  of  Title. 

SF,CTIO>r, 

S2.    Intention  of  parties  the  main  test. 

Hatch  V.  Oil  Co..  \oo\^.^.  \2\ 445 

Sale   of  chattels  not  specified — Necessity  of  separa- 
tion from  mass. 

Chapman  v.  Shcpard,  39  Conn.  413 455 

Whitcomb  v.   Whitney,  24  Mich.  4S6 463 

Scott  V.  Wells,  6  W.  &  S.  357 467 

Same — Acts  to  be  performed  by  parties. 

Frescott  V.  Locke,  z^i^.n.  g^ 472 

Same — Grain  in  elevators. 

Gushing  v.  Breed,  14  Allen,  376 4S3 

Payment  as  condition  precedent. 

Prt/^/f.  /I'mA  55  N.  H.  X36 4S6 

Delivery  to  carrier. 

Bailey  v.  Hudson  River  R.  Co.,  49  N.  Y.  70.     .  490 
Goods  sent  C.  O.  D. 

Com.  V.  Fleming,  130  Pa.  St.  138 494 

State  V.  O'Neil,  48  Vt.  140 502 

Goods  sold  on  condition — "Sale  or  return." 

Dearborn  v.  Turner,  16  Maine,  17 506 

Same — Sale  "on  trial"  or  "approval." 

Hunt  V.   Wyman,  lOO  Mass.  19S 507 

Same — Sale  of  goods  "to  arrive." 

Rogers  v.   Woodruff,  23  Ohio  St.  632 508 

Rights  of  purchasers — Market  oveit. 

Griffith  V.  Fowler,    18  Vt.  390 510 

Rights  of  purchasers — Purchaser  from  thief. 

Hoffman  v.  Garow,  22  Wend.  285 514 

Same — Rights  of  third  parties. 

Colcv.  Berry,  42  N.  J.  (L.)  30S 547 

Coggillv.  Hartford,  etc.,  R.  Co.,  3  Gray,  545    .  553 

Barker  v.  Dinsmorc.  72  Pa.  St.  427 557 

Same — The  case  of  a  voidable  title. 

Easter  v.  Allen,   8  Allen,  7 559 

Barnard  v.  Campbell,  55  N.  Y.  456;  58  Id.  73..  562 


84. 

S5- 
86. 

87. 

88. 

89. 
90. 
91. 
92. 

93- 
94. 

95- 


4.      Warranties. 

96.    Implied  warranty  of  title. 

Gross  V.  Kierski,  41  Cal.  in. 


573 


ANALYSIS    OF    THE    srnjECT. 


XV 


1  of  separa- 


Y.  70. 


•  • 


445 

•  455 

•  463 

•  467 

•  472 

•  4S3 
.  4S6 

•  490 

.  494 

•  502 

•  5«6 


• 

.   .   . 

507 

• 

•      •      • 

508 

ief. 

.    .   . 

510 

• 

•    • 

5H 

• 

Gray 

> 

.  545  • 

547 

553 
557 

;  58 

Id.  73. 

•  559 

•  562 

SECTIOV.  ,       .         •  1  r         11 '„ 

97.    vSame— No  warranty  where  sale  is  simply  of  seller  s 
interest. 

Eichholz  V.  Bannister,  17  C.  B.  (N.  S.)  70S.      .   577 
9S.    vSame— Nor  where   goods  arc  not  in  seller's  posses- 
sion. 

Gould  V.  Bimrgcois,  51  N.  J.  (L.)  361.      .      •     •  5^^ 
99.    Warranty  of  quality — Express  warranty. 

Osgoodv.Lc~.vis,2ll.8i.S.<.\c)^:) 5^9 

100.    Same — Oral  warranties. 

Sciiz  V.  Brewers'  Rcf.  Mach.  Co.,  141  U.  S.  510.  599 
loi.    Same — Expression  of  opinion. 

Bvrnc  V.  Jansen,  50  Cal.  624. ^°1 

102.  Same — Patent  defects. 

McCormickv.  Kelly,  2^  Unm.  iSS ^°9 

103.  Warranty    of    quality— Implied    warranty— Rule  of 
caveat  emptor. 

Barnard  v.  Kellogg,  10  Wall.  383 

104.  Exception    to   the  rule  of    caveat  emptor— Implied 
warranty  that  ^oods  answer  description. 

Wolcottv.  Mount,    38  N.  J.  (L.)  496.   .... 

10- .    Same— Afe  all  merchantable  under  that  description. 

Hawkins  V.  Pcmbcrton,  51  N.  Y.  198 

106.  Same— That    article    manufactured   is  fit  for  usual 
purpose. 

Randall  v.  Newson,  2  Q.  B.  Div.  loa.       .       .     • 

107.  Same— Article  sold  for  particular  purpose. 

Gcrst  V.  Jones,  7,2  GvAiU  $1^ ■ 

loS.    Same— Article  sold  by  sample. 

Bradford  V.  Manly,  12,  '^a^^-  "^^9 

109.    Same — Article  sold  for  food. 

Giroux  V.  Stedman,  145  Mass.  439.      .      •      • 


5.      The  Performance  of  the  Contract  of  Sale. 
1 10.    Mutual  conditions  precedent. 


See  Paul  v.  Reed,  ante,  §  4S6. 

111.  Place  of  delivery. 

Jatiney  v.  Steeper,  30  Minn.  100. 

112.  Delivery  to  carrier. 

Magruder  v.  Gage,  33  Md.  344. 


613 

621 
626 

634 

643 


650 


655 


•  659 

•  659 
.  661 


573 


XVI 


ANALYSIS    OF    THIi:    SUBJECT. 


7;  v'fieliverv  of  right  quantity-Successive  deliveries. 

6.      The  Remedies  for  the.  Breach  of  the  Contract  of  Sale. 
I II      The  seller's  remedies— Action  for  purchase  price. 

Shau'han  v.    Van  Nest,  25  Ohio  St.  490.      •••679 

115.  Same— Re-sale.  ^      ^  ^^^ 

Diistau  V.  McAndrew,  i,\^'^'1'^ 

116.  Same— Action  for  damages. 

//c;.9W<r  z'.   HVAw,  7  Midi.  394 ^^^ 

117.  Same— The  seller's  lien. 

Arnold  v.  Delano,  4  Cush.  33 9 

118.  Same— Stoppage  in  transitu— In  general. 

Babcock  V.  Bonnell,  So  N.  Y.  221 7°:? 

no.    Same— Insolvency  of  buyer. 

Benedict  v.Schaettle,\2  0V\o^\.':,\':,.      •       .     -7°^ 
120.    Same— Disregard  of  notice  to  carrier. 

7o«f5  t-.  £<?r/,  37  Cal.  630 71& 

J2I.    Same-Delivery,  when  complete. 

r/z/Z^z^.  .Sy-.r.?^'/-.  79  Maine,  213 7^ 

J,,     Same -Rights  of  assignee  of  bill  of  lading. 

Xc-vhallv.  Central  Vac.  R.  Co.,  51  Cal.  345.      •  72° 
123.    The  buyer's  remedies— Damages  for  nondelivery. 

Whitmarsh  v.  Walker,  i  Mete.  313 7H 

,3,_    Same— Replevin,  where  title  has  passed. 

Scndderv.   IVorster,  11  Cush.  S7?, 7^^ 

125.    Same— The  action  for  breach  of  warranty. 

Lyon  V.  Bertram,  20  How.  149 734 


liveries. 


666 


ntract  of  Sa/c 
ise  price. 


50. 


#  • 


•  679 
.  6S6 

.  691 

.  696 

•  703 


5- 

.   70S 

.  716 

•        •        • 

.  71S 

ins- 
Cal.  345. 

.  720 

andclivery. 

. 

•  724 

d. 

•            ■              * 

.  736 

nty. 

•  734 

CHAPTER  I. 

THE  CHARACTERISTICS  OF  PERSONAL 
PROPERTY 


§  1.    The  meaning  of  "Property."— Absolute  property. 

MORRISON  V.  SEMPLE. 

[6  Binney,  94.] 

Supreme  Court  of  Pennsylvania^  1813. 

This  was  an  ejectment  for  143  acres,  136  perches  of  land  in 
Allegheny  county,  brought  in  the  name  of  Edward  and  Sarah 
Scmplc  by  their  guardian,  William  Hays,  against  Morrison  and 
others,  the  plaintiffs  in  error;  in  wiiich  the  following  case  was 
stated  in  the  nature  of  a  special  verdict,  and  judgment  was 
without  argument  entered  for  the  plaintiffs  below,  that  the 
cause  might  be  removed  to  this  court. 

"Samuel  Semple,  late  of  Allegheny  county,  deceased,  on  the 
eighth  day  of  February,  1S08,  was  seized  in  his  demesne  as  of 
fee,  of  and  in  the  tract  of  land  above  mentioned,  with  the 
appurtenances  thereunto  belonging;  and  being  so  thereof  seized 
and  possessed,  the  said  Samuel  afterward,  to  wit,  the  same  day 
and  year  aforesaid,  at  the  county  aforesaid,  made  his  last  will 
and  testament  in  writing  in  the  words  following,  viz:  'In  the 
name  of  God.  Amen.  I,  Samuel  Semple,  of  Allegheny  coun- 
ty, in  Pennsylvania,  being  of  sound  mind,  do  make  this,  my 
last  will  and  testament,  in  manner  and  form  following:  I  do 
bequeath  and  devise  unto  my  beloved  son-in-law,  Steele  Sem- 
ple, all  my  real  and  -personal  property;  and  I  do  hereby  con- 
stitute and  appoint  him,  the  said  Steele  Semple,  sole  executor 
of  this  my  last  will  and  testament.  In  witness  whereof,  etc. 
/        '  (I) 


-"•^"ir  - 


''^^t 


w 


2  -VnV.  niAUACTKIilSTICS  OF  I-KUSOXAI.  rnDi'F.Hrv. 

Altcruanl.to    wit.  the    tenth    of    April,  in    the  year  aforesaid, 
the  sai.l  Samuel  Semplc  tlicil,  leavin.i,'  issue.  Juliet  intermarried 
with  the  late  Steele  Semple  in  the  said  last   will    and   testament 
mentinned.      The   marria-e    of   the  said  Steele   a:  d  Juliet  look 
place  hefore  the  makin-  of  the  last  said  will  and  testament,  and 
|,oth   survived    the  said    Samuel  Semple,   and    had   issue,   two 
children  born  alive  previous  to  the  de^ith  of  the  testator  and  the 
maUin-   his    said    last   will.     Some  time  between  the  death  of 
the  said  Samuel  Semple  and  the  institution  of  this  suit,  the  said 
Steele  Semple  and  .h.lict  both  died  intestate,  leavin-  issue  two 
children,  l.dward  and  Sarah,  the  plaintiffs  in  this  suit,  both  of 
whom    are   min.ns.   and   whose   -uardian   is   the   said    William 
Havs.     The   said    Steele   Semple  by    a   former  wife  had   two 
children,  both  of  whom  are  still  living.      The  defendants  arc  in 
possession  of  the  land  mentioned  in  the  ejectment,  and  claim 
un.ler  a  sale  and  conveyance  in  fee  simple  made  to  them  by  the 
said  Steele  Semple  in  his  lifetime." 

"If  the  court  shall  be  of  opinion  that  the  said  Steele  Sem- 
ple in  the  devise  in  the  said  last  will  and  testament,  took  an 
estate  in  fee  in  the  tract  of  land  aforesaid,  then  ju<ip;ment  to  be 
entere.l  for  the  defendants.  But,  if  under  the  devise  aforesaid, 
he  took  !  .11  an  estate  for  life,  jud-mcnt  to  be  entered   for  the 

plaintiffs." 

M' Donald  and  Wilkins  for  the  plaintiffs  in  error  argued  that 
where  words  of  description  were  used  by  a  testator,  a  life  estate 
passed;  but  when  he  used  words  denotin<(  his  whole  interest, 
his  whole  estate  passed;  and  that  the  terms  "all  his  real  prop- 
ertv,"  particularly  when  connected  with  terms  embracing  the 
personalty,  were  the  strongest  that  could  be  used  to  denote  all 
the  testator's  estate,  right,  and  interest  in  the  premises. 

Mountain,  contra,  did  not  deny  the  general  principle  for 
which  the  opposite  counsel  contended,  but  argued  that  "/r^/- 
vrty  ill  this  will  denoted  the  thing  devised  in  the  same  man- 
ner as  if  the  devise  had  been  of  all  the  testator's  lands.  He 
cited  and  relied  on  French  v.  M'llhcnny,  and  Clayton  v.  Clay- 
Ion,   3  Binn.  476. 

TiLGiiMAN,  C.  J.— Judgment  was  entered  in  this  case  in  the 
court  of  common  pleas,  without  argument  and  by  consent  in 
order  that  it  might  be  brought  up  for  the  opinion  of  this  court. 
The  question  is"  whether  an   estate  for  life  or  in  fee  passed  to 


lOI'KHTV. 


MOIUIISON  V.    SKMrLK. 


c  year  aforesaid, 
ilict  intcnnniried 
11  ami  tfhtamunt 
;  a:  ct  Juliet  took 
lul  testaiTHMit.  ami 
I  bad  issue,  two 
e  testator  and  tlie 
k-een  the  death  of 

this  suit,  the  said 
leavini;;  issue  two 
tliis  suit,  both  o( 
the  said  William 
ler  wife  had   two 

dei'endauts  are  in 
Llmeiit.  and  claim 
ule  to  them  by  the 

,c  said  Steele  Sem- 
estament,  took  an 
in  judgment  to  he 
e  dexise  aforesaid, 
be  entered   for  the 

I  error  argued  that 
'stator,  a  life  estate 
lis  whole   interest, 
"all  his  real   prop- 
•ms  embracing  the 
used  to  denote  all 
.'  premises, 
neral   principle    for 
irgued  that  '•'•prop- 
I   in  the  same  man- 
itator's  lands.      He 
id  Clayton  v.  Clay- 


1  in  this   case  in  the 

and  by  consent  in 

jinion  of  this  court. 

;  or  in  fee  passed  to 


Steele  .Semplc  by  the  will  of  Samuel  Semple.    The  will  is  very 
.hort  and  in  the  following  terms:    [Here  the  Chief  Justice  read 
the  will.]      'I'lie  counsel  for  the  defendant  i  n  error  placed  this 
case  in  as  strong  a  light   as  it  would   bear,  but   I   have   never 
I'Utertained  a  doubt  on  the  subject.      In  whatever  point  of  view 
it  is  considered,  I  perceive  a  plain   intention  with  apt  words  to 
pass  a  fee  simple,      \\^i\v:   is   a    testator   witli   an  only  child  [a 
daughter],  who  had  a  husband   and  two  children.      He  makes 
no  mention  either  of  ciiild  or  grandchild,  but,  speaking  of  his 
son-in-law  in  the  most  affectionate    manner,  he   gives   him  the 
whole  of  his  real  and  personal  property  and   appoints  him  his 
sole  executor.     Wha    can  be  concluded  from  this  but  that  the 
testator,  placing  unbounded  conlidcnce  in  the  husband,  intended 
to  put  e\erything  in  his  power?     It  is  unconceival)Ie  that  with 
any  other  intent  he  should    have   observed    a  profound   sdence 
witli  reference  to  every  other  human   being.     It  is  a  singular 
instance  of  confidence,  but  does  not  prove  that  the  testator  had 
no  affection  for  his  daughtei    or   her   issue.     It  proves  that  he 
was  convinced  of  the  honor  and  integrity  of  his  son-in-law,  and, 
to   an    honorable    and    upright    mind,    no   obligation    could   be 
stronger  than   that   which   this  will  imposed.      What  is  its  lan- 
guage.'    "1  place  everything  that  is  dear  to  me  in  your  hands. 
The  person  and  the  fortune  are   confided  to   you.     I  know  that 
you  will  prove  worthy  of  the  trust."      Hut  it  is  said  that  inten- 
tion alone  is  not  sufficient.     The  heir  is  not  to  be  disinherited 
without  words  sullicient  to  pass  the  estate  to  some  other  person. 
It  is  true  that  we  are  not  permitted  to  guess  at  the  intention ;  it 
must  be  ascertained  from  the  words  of  the  will.      But  if  it  can 
be  so  ascertained  it  shall  be  ciyxied  into  effect.     No  technical 
words   are   necessary   to  pass  a   fee  simple.      Any  expressions 
which  show  an  intent  to  give  an  absolute  estate  are  sufficient. 
A  devise  of  land  to  one  forever,  or,  "to  dispose  of  at  his  will 
and  pleasure"  is  a  fee,  because  there  is  a  manifest  intent  to  give 
a  fee.     So   a  devise   of  one's  estate,  or  of  all  one's  right  or 
interest  in  land  passes  a  fee  for  the  same  reason.     The  rule  is 
this:      U^ords   which  only  describe  the  (j/yVr/!  devised,  give  no 
more  than  an  estate  for  life;  but  words  which  comprehend  the 
■jnantuiii    of    the    estate,  pass    the    fee.     And  this   rule  is  not 
founded  on  any   artificial    principle,    but  on   the  plain  ground 
of  common  sense  and  fair   construction   when    a  man   gives   all 
his  estate  it  is  as  much  as  to  say  all  the  interest  that  he  has  in 


4  THE  CHARACTERISTICS  OF  PERSONAL  PROPERTY. 

the  subject  (leviscd.     In  the  present  instance  the  testator  aesig- 
nates  no  pavticuhir  object,  but  gives  in  general  all  fits  -cal  and 
personal  property.     I  can  conceive  no  expressions  move  com- 
prehensive.    The  giving  of  the  real  and  persona,  property  by 
the  same  words  shows  an  intent  to  give  the  same  mterest  .n 
both,  tlKU  is  to  say,  an  absolute  interest  in  personal  property. 
Property  signifies  the  rigid  or  interest  which  one   has  n.   land 
or  chattels.     In  this  sense  it  is  used  by  the  learned  and  unlearn- 
ed   by  men  of  all  ranks  and  conditions.      We  find  it  so  defined 
in  dictionaries   and  so   understood   by  the  best  authors.     The 
possession  of  land  may  be  in  one  man,  the  property  ^n  another. 
There    is   a    ri'rht   of    possession    and    a    rig/it    of  property. 
Every  scrivener  who  draws  a  conveyance  mentions  not  only  the 
land  itself,  but  also  "the   right,  title,  interest,  and  property  ol 
the  grantor  of,  in,  and  to  the  same."     In  common  conversation 
we   say  that   such   a  house  or  piece  of  land  is  the  property  of 
such  a  person.     When,  therefore,  a  man  devises  all  his  rcat 
i>ropertv.  he  devises  all  the  right   and  interest  which  he  has  in 
any  lands  or  real  estate.     If  he  has  a  right  in  fee  simple    a  fee 
passes,  otherwise  the  will  is  not  complied  with  ;  for  if  the  devisee 
takes  but  an  estate  for  life,  he  does  not  take  all.  but  only  part 
of  the  devisor's  property.     Many  cases  were  cited  on  the  argu- 
ment.    I  think  it  unnecessary  to  take  particular  notice   of  any 
of  them.     It  is  a  principle  undeniable  that  when  the  words  of  a 
will   indicate   an   intention   to  pass  the  whole   interest   of    the 
devisor,  the  devisee  shall  take  a  fee.     Being  clearly  of  opinion 
that  such    an   intention  is  indicated  by  the  expressions  of  this 
will,  it  follows  that  Steele  Semple  took  an  estate  in  fee  in  al 
the  real  estate  of  Samuel  Semple.     The  judgment  of  the  cour 
of  common  pleas  must  therefore  be   reversed,  and  judgment 

entered  for  the  plaintiffs  in  error. 

Judgment  reversed, 

CoNsr.T-Tackson  v.  Housel,  17  Johns.  .81 ;  Russell  v.  Ralph   53  ^Jis^ 

V.  Railroad.  «4  N  •  Y  565 ;  f     -    I.u     1   N .^        -,^  ^^^^  ^^^^^^^ 

::  C;,Lln.V''Mo^'.'n  Town  of  PaHs  v.  Fan.e.s  Ban.,  30  Mo. 
575;  Kellogg  V.  Blair,  6  Mete.  3^2. 


OPEllTY. 


TIIK   CIIAUAC  TIIUSTICS  OV   I'lCKSONAI,  IMlDl'liUTY, 


le  testator  dcsig- 
a/l  his  "CaxI  ami 
sions  move  com- 
ma', property  by 
same  interest  lU 
jrsonal  property, 
one   has  in   lanil 
rned  and  uiilearn- 
fincl  it  so  defined 
st  autliors.     The 
1-hcrtv  in  another. 
flit    of  property. 
tions  not  only  the 
,  and  property  of 
mon  conversation 
is  the  property  of 
vises  all  his  real 
t  which  he  has  m 
1  fee  simple,  a  fee 
;  for  if  the  devisee 
all,  but  only  part 
cited  on  the  argvi- 
ilar  notice   of  any 
hen  the  words  of  a 
le   interest  of   the 
clearly  of  opinion 
expressions  of  this 
estate  in  fee  in  all 
^ment  of  the  court 
sed,  and  judgment 

Judgment  reversed. 

issell  V.Ralph,  53 Wis. 
e,  79  Ind.  13;  People 
20;  Leonard  v.  Laur- 
4  Kla.  359;  Ciuniiiings 
farmer's  Bank,  30  Mo. 


§  2.    Qualified  property.-  In  the  light. 
IIUnUARD  V.  TOWN. 

Supreme  Court  of  I  'eriiiont,  j86o, 

[3.?  vt.  -95O 

PiHitroiNT,  J. — This  action  is  lirought  tn  recover  the  damn.-e 
claimed  to  have  been  sustained  by  the  plaintiff  in  consecpiPiu-c- 
of  the  defendant's  obstructmg  his  lights.  It  appears  fronj  t!ic 
case  tliat  the  building,  which  has  been  owned  and  occupied  by 
the  plaintiff  and  his  tenants  for  more  than  twenty-live  years 
prior  to  the  acts  complained  of,  stands  upon  the  line  between 
his  premises  and  the  premises  of  the  defendant,  and  that  the 
defendant  has  owned  and  occupied  his  premises  during  the 
aforesaid  period ;  that  the  windows  in  the  plaintiff's  building 
opened  out  toward  the  premises  of  the  defendant,  admitting 
liglit  from  that  direction,  and  that  they  have  so  remained  with- 
out obstruction  and  without  (juestion  on  the  part  of  the  de- 
fendant for  the  period  of  twenty-five  years  or  more;  that  in 
1S59  the  defendant  erected  a  building  on  his  own  premises 
innnediately  adjoining  that  of  the  plaintiff,  so  as  to  exclude 
the  light  from  two  of  the  plaintiff's  windows. 

The  only  question  involved  in  this  case  is,  whether  the  plain- 
tiff, by  such  long  and  uninterrupted  use  of  his  windows,  and  the 
light  passing  through  them,  has  thereby  acquired  the  right  so 
to  continue  his  windows  and  thus  to  have  the  light  pass  through 
them,  so  that  any  act  of  the  de'fendanb  which  shall  materially 
obstruct  such  light  will  make  him  a  wrongdoer,  and  liable  for 
luiy  damage  to  the  defendant  that  m'ay  ensue  therefrom. 

The  rule  seems  now  to  be  well  settled  in  England,  that  such 
long  and  uninterrupted  use  of  light  gives  the  right  to  continue 
its  use,  and  to  insist  upon  its  remaining  unobstructed  by  the 
adjoining  proprietor  for  all  time.  The  courts  place  this  upon 
the  same  ground  as  rights  of  way,  and  other  rights  acquired  in 
and  over  the  premises  of  another  by  long  a.id  undisturbed  use; 
presuming  from  the  long  exercise  of  the  privilege  by  the  one, 
and  an  acquiescence  therein  by  the  other,  that  the  right  had  its 
origin  in  a  grant. 


-.^■^ 


nail 


fi  TIIK  CIlAUAiTKUISIKs  ..!■    .■I...S..N  AI.   PUO.'EUTY. 

While  tl.e  Kr..c-ral  .luelrine  Ik.s  been  universally  adoptc.l  in 
this  country,  its  application  to  cases  of  this  kin.l  has  not  bcc-n 
t,H.ncrally  rcc..«ni/.c.l,  an.l  in  n,any  of  the  states   has   heen  ex- 

ijvesslv  (Uiiied.  . 

Onrstatntc  of  limitations  can    not  U   hron^ht   n,  aul  of  the 
p,,i,Uiff's    claim.        The     statute    in    terms  only  deprives  the 
a.^,rievc.l  par.v  of  the  rij^ht  of  action    after  the     myte.l  penod 
,-,t,  the  tin,e -the  cause  of   action    accrues,    and   al.hon,d.  on, 
courts  lave  held  that  the   exercise   of   the   ri«ht  by  <.ne  party, 
and  an  acc.uiescence  therein  by  the  other,  for  such  P--'-  -;;^ 
i.,  Uu.  partv  so  exercisin^^  it   an    absolute   ri.ht.    stdl     n>  deter- 
mininj  tlH.  question  whether  such  ri«ht  has  in   fact   l>ecome  an 
absolute  one.  the  time  that  the  one  has  so  exerc.scd   >t  .8  to  be 
computed  fron,  the  period  when  a  cause  of  act.on  therefor  fnst 
accrued    to    the    other,    which  he  has  omitted  to   e., force ;    so 
that  n..  riKht  can  be   lost  or  acquired   by    virtue  of  the  statu  e 
^vherc.  there  has  been  no  act  done  by  the  one   for  wluch    he 
law  gives  a  remedy  by  action  to  the  other;   and   ,t  .s  conceded 
in  this  case  that  the  defendant  had   no   ri<,dU  of   act.on    a^.uns 
the    plaintiff    for    any   act  of   his  in  ereclin.^  h.s  bu.ldmu^  and 
opening  and  continuing  his  windows  on  the  side   adjonuug  to 
and  overlooking  the  defendant's  premises. 

This  reason  would  seem  to  apply  with  equal  force  agamst  the 
plaintiffs  right  to  recover  on  the  ground  that  a  u^^mt  will  he 
presumed  from  lapse  of  time  to  sustain  his  claim. 

The  principle  upon  which  a  grant  i.  presumed   is,  that  in  no 
other  way  can  the  acts   of   the   parties  be  rationally  accounted 
for      Such  presumption  is  required  to  account  for  the  exercise 
of  'the  right  by  the  one,    and  the  acquiescence  therein  by  the 
other,  for  so  long  a  period.     The  right  must  be   exercised  ad- 
versely  or  under  a  claim  of  a  right  so  to  exercise  it  by  the  one, 
and  it  must  be  acquiesced  in  by  the  other.    -This  of  itself  pre- 
supposes that  the  exercise  of  the  right  by  the   one,  without  a 
.rant,  is  a  violation  of  some   right  of  the  other;   otherwise  it 
conldnotbe  adverse  within  the    meaning  of  the  rule ;   neither 
could  the  other  acquiesce,  for  that  presupposes  a   legal  right  to 

o!<iect  and  resist. 

If  then  there  is  no  violation  of  the  rights  of  another,  no  pre- 
sumption  of  a  grant  by  such  other  arises:  there  is  no  occasion 
lo^T    There  is  no  right  exercised  or  claimed  by  the  one  that 


OI'EUTY. 

<;illy  adopted  in 
1(1  1ki'<  not  lieeii 
L-.s   luis   lifcn  ex- 

lit    in   .I'ul   of   tlie 
nlv   deprives  the 
e   limited  jieiiod 
lid   altlioii-,'!)  oui 
lit  hv  one  party, 
iich  period,  vests 
t,    still,   in  dcter- 
faet  become  an 
ixised   it  is  to  be 
;tion  tlieicfor  fust 
d  to  enforce;    so 
Uie  of  the  statute 
,iic   for  which  the 
nd   it  is  conceded 
of  action   a|j;ainst 
his  building  and 
side   adjoining  to 

\\  force  against  the 
nt  a  f,rant  will  be 
laim. 

imed   is,  that  in  no 
itionally  accounted 
lint  for  the  exercise 
nee  therein  by  the 
t  be   exercised  ad- 
rcise  it  by  the  one, 
.This  of  itself  pre- 
the   one,  without  a 
other;    otherwise  it 
)f  the  rule  ;  neither 
ises  a  legal  right  to 

3  of  another,  no  pre- 
there  is  no  occasion 
led  by  the  one  that 


III  iiiiAUi)  V.   rowN.  7 

Inlongs  to  the   other,  or   \\\\Wh   he   could    'j,\ant.   if  he   should 

attempt  it. 

llow,  then,  can  this  dn  trine  of  piesninption  apply  to  a  case 
like  the  present.'     The  erection  of  the  building  by  the  plain- 
tiff on  the  line  between  him  mu]  the  .Ufend:iiit  wa^.  nn  violation 
;.r  any  right   of   the   defendant;   he  could    not  complain  of  or 
prevent  it.  and  his  assent  or  dissent  could    in   no   niamu;-   affect 
[\\v  transaction.     The  legal  right  to  do   the    act    was  periei  t   in 
the  plaintiff.      His  right  to  erect  his  building  on   the  division 
line  is  not  controverted;   the  wisdom  of   the  act   is  inniv  (pies- 
tioiii\b!e.      lie  might  have  made  his  walls  v,,lid.   thus  entirely 
excluding  the  light  from  that   direction;     he    chose    to    lea\e 
apertures    therein,    theieby    allowing   the    ligiit    to    rem.iin    un- 
affected to  that  extent;  but  how  can  it  be  said   that  U    e\c!u(!' 
iiig    the    greater    part    he    acquires    any    betli'r    rigiit    to  the 
remainder  than  he  would  have  had  to  the  whole   if  he  had  not 
excluded  any?     lie  has  not  done   a..y    act   which    has  had   any 
effect  to  control   or   inflnoncc   th';   light,   except   to  '■xclude   it. 
He  did  not  draw  or  cause  the  light  to  pass  in  upon  his  premises 
ill  anv  other   than    its   natural    manner ;   it  remained   upon   and 
over  the  defendant's  premises  as  it  had  always  been.      A>.  there 
was  no  interference  with  the  lights  of  the  defendant,   it  is  diffi- 
cult to  see  upon  what  the  presumption  of  a  grant  can  be  based. 
Lapse  of  time  and  the    presumption    arising   therefrom   are  re- 
sorted  to  only  to  justify  in  one  that  which   would   otherwise  be 
a  usurpation  of  the  rights  of  anotlier. 

If  a  man  can  acejuire,  by  use.  a  right  to  an  uninterrupted 
enjoyment  of  light  under  circumstances,  like  the  present,  why 
not  .acquire  a  right  to  a  like  enjoyment  of  the  prospect  from  the 
same  windows,  or  to  a  free  access  of  the  air  to  the  outside  of 
his  building  to  prevent  decay,  and  many  other  rights  of  a  simi- 
lar and  no  more  ethereal  character.' 

The  result  of  which  would  be,  if  allowed,  an  utter  destruc- 
tion of  the  value  of  the  adjoining  land  for  building  purposes. 
Windows  are  often  of  more  importance  for  the  prospect  they 
afford  than  for  the  light  they  admit.  The  light  may  be  ob- 
tained from  other  directions,  the  prospect  can  not.  A  pleasant 
prospect  from  the  windows  of  a  dwelling  always  contributes 
more  or  less  to  the  enjoyment  of  the  occupants,  and  often  enters 
largely  into  its  pecuniary  estimate.     But  to   admit  that  a  mere 


f 


■^sKy'jg'ff'"' 


JTr- 


8  THE  CHAUACTERISTICS  OF  PERSONAL  rnOPERTY. 

"'sX,c^^  right  c»„  bo  »cquired  by  use,  for  .he  same  ,e»so„ 
,„^   ircKerdse  by  on=  is  no  i„tri„sen>e„.  o.    he  ngl,  s  o 
!;ler,.or  .hieh  .he  ,».  .ives  an  -«;;• ,,  ^^       -     .;  ;: 

'-'":""";' :':r'r::;'niw  a ;.;,:;';. ph,in.i«'s ..iv^cy 

"""'ob    Xr.^i.    he  book,,  he  hnd  .-.ever  l.„o.v„  snd,  an 

:c«o:.o  bet'at ed,  and  .ha.  he  had  heard  i.  h.id  do.,,  by 

r      >    Ch    T     that  such  an  action  did  not  lie. 

w'eUnk'd,  English  courts  in  applying  .he  doe.rinee  of  .he 
„,.  slptno  grailfs  fron,  long  use  and  aequiescenee  .o  .  .s 
ir:f'eases.  cfearly  depar.ed  .-;-_»"-  ^^^^Z 
"■"  -Jt'sers"  o";,s"::  .i:.-s  L  P.ach:;cases  ...  ...  prese„. 

-?-i;,,.^:hr:^:u:etnr:in;^^;;;ra:;i 

r"    had  li"h ts  at  the  end  of  U,  if  the  owner  of  the  adjou.ng 

Hit:irir.::::::;r:tth-i;r 

e  d  .  •  •  that  .»cnty  years  was  sulHcent  .o  g,ve  a 
;  title  in  eieetment  on  which  l,«  niay  recover  .he  house 
3  a  le  L  no  reason  why  it  should  no,  be  suffleion.  .o 
e,  .m  o  an  easement  belonging  to  the  house.  ■  As  we 
r  r  ,lre"lv  seen,  no  presump.ion  of  an  agreemc,  ar.ses,  as 
ha%e  ahead}  s.en,  ,  ^^^^^  occupies 

„„,„  was  "'^^^^y^J^'^^  ,3  „„  utter  title  to  i.  at  the 
'"^°T  t,T.im  .han  he'l  ad  in  .he  ou.set,  Does  he  acquire 
::;  °L*:;  rigTt  .'   .he  ugh.  by  .he  occ„pa.io„  .ban  .o  the 

^:er:tr:who":ar  possession  of  his  neighbor,  house 


^,ov; 


L PROPERTY. 

years  gives  him  the 
■rupted  fo>-  all  future 
t  variance  with  well- 
be   tolerated    in   this        > 

,  for  the  same  reason 
nent  of  the  rights  of 
,n.  Le  Blanc,  J.,  in 
5:  '-That  although  an 
he  plaintiff's  privacy 
iiever  known  such  an 
heard  it  laid  down  by 

lie. 

ig  the  doctrince  of  the 

d  acquiescence  to  this 

ancient  common  law 
i-o.  Eliz.    118,  and  the 
Ig  cases  like  the  present 
n  subject  to  the  same 
.which  they  really  have 
nd.    175«,  Wilmot,  J., 
built  forty  years,    and 
owner  of  the  adjoining 
:>stvuct  them,  an  action 
ason  as  where  they  have 
;h  to  induce  a  presump- 
ement  between  the  par- 
was  sufficient  tci  give  a 
;  may  recover  the  house 
uld  not  be  sufficient  to 
to  the  house."     As  we 
an  agreement  arises,  as 

The  man  who  occupies 

0  better  title  to  it  at  the 
nitset.     Does  he  acquire 

1  occupation  than  to  the 

lit,  he  can  acquire  none 
asoning  is  in  saying  that 
I  of  his  neighbor's  house 


HUnnARD  V.   TOWN.  9 

and  holds  it  adversely  for  twenty  years  (his  neighbor  aquiescing 
llicrein)  accjuires  a  title  to  it,  therefore  the  man  wiio  opens 
windows  in  his  own  house  that  in  no  way  interfere  with  the 
liirhts  of  his  neighbor,  and  of  which  such  neiglibor  has  no  legal 
nijht  to  complain,  and  keeps  them  open  for  twenty  years, 
thcrcbv  acciuires  a  rigi..  co  insist  that  no  act  shall  be  done  by 
Ills  neighbor  on  his  own  land  that  in  any  respect  interferes  with 
or  obstructs  the  light  to  those  windows.  In  the  one  case  there 
,s  an  infringement  of  the  rights  of  another  for  which  the  law 
aivcs  a  remedy  by  action;  in  the  other  there  is  not.  This 
constitutes  a  radical  difference  iietween  the  two  cases,  and  that, 
too,  in  respect  to  the  very  point  upon  which  tiie  whole  doc- 
trine of   presumption   in    cases  like    those   under  consideration 

depends. 

It  might  be  urged  with  much  force  that  a  man  who  conveys 
a  house'' with  the  privileges,  etc.,  would  not  have  a  right  to 
make  an  erection  on  his  own  land  adjoining  that  .vouid  shut 
OMt  the  light  from  the  windows  in  the  house  so  conveyed,  and  it 
may  be  said  that  he  who  lias  occupied  another's  house  for  such 
a  length  of  time  and  under  such  ci-.-umstances  that  a  grant  will 
be  presumed,  stands  upon  the  same  footing  as  an  ordinary 
grau.ee.  However  that  may  be,  this  case  involves  no  such 
question.  In  those  cases  the  question  turns  upon  the  fact  that 
the  title  to  the  premises  was  derived  by  deed,  actual  or  pre- 
sumed, from  the  party  who  seeks  to  deprive  his  grantee  of  the 
enjoyment  of  the  right  he  has  conveyed.  The  right  does  not 
depJnd  upon  the  lapse  of  time,  but  is  as  perfect  in  the  grantee 
the  moment  the  deed  is  executed  as  it  can  ever  be.  Here  the 
tide  to  the  premises  of  the  plaintiff  was  never  in  the  defendant, 
but  has  been  in  the  plaintiff  through  the  whole  period. 

This  question  was  fully  considered  in  New  ^I'ork,  in  the  case 
of  Parker  v.  Foote,  19  Wendell,  309.  Bronson,  J.,  says: 
'•Upon  what  principle  courts  m  England  have  applied  the  same 
rule  of  presumption  to  two  classes  of  cases  so  essentially  differ- 
ent in  character  I  have  been  unable  to  discover.  If  one  commit 
a  daily  trespass  upon  the  land  of  another,  under  a  claim  of  right 
to  pass  over,  or  feed  his  cattle  upon  it,  or  divert  the  water  from 
his  mill,  or  throw  it  bick  upon  his  land  or  machinery,  in  these 
and  the  like  cases,  long  continued  acquiescence  affords  strong 
,/resumption  of  rijrht.     But  in  the  case  of  lights  there  is  no  ad- 


lO 


Tlir.  CIIAKACTKIUSTICS  OF   PERSOXAL  PROPEIITV. 


verse  user,  nor,  Mi<lec<l,  anv  use  Nvhatever  of  another's  prop- 
erty, and  no  foundation  is  laid  for  indulgirig  any  pres  impt.on 
acminst  the  rightful  owner."  And  again  he  says:  -'Ihcrc  is 
no  principle,  I  think,  upon  which  the  modern  English  doctr.ne 
of  ancient  lights  can  be  supported." 

The  same  doctrine  was  held  in  Pierre  v.  Fcrnald,  26  Mame, 
4^/,.  and  in  Napier  v.  Hulwinkle.  5  Rich.  (S.  C.)  3>--  '"  ^^°th 
of  which  cases  the  subject  was  fully  discussed. 

We  see  no  reason  growing  out  of  the  nature  or  necessities  of 
this  class  of  cases  that  require  us  to  extend  the  doctrine  of  the 
presumption  of  grants  to  them:  but,  on  the  other  hand,  the 
establishment  of  a  rule  that  would  require  a  man  to  erect  a 
buildincr  or  wall  that  he  did  not  need  on  his  own  premises,  for 
the  sole  purpose  of  excluding  the  light  from  his  neighbor's 
windows,  would  lead  to  continual  strife  and  bitterness  of  feel- 
ing between  neighbors  and  result  in  great  mischief. 

The  judgment  of  the  county  court  is  affirmed. 

CovsvLT-Dovle  V.  T.ord,  64  N-  Y.  «7 ;  =>  Am.  Rep.  6.7;  Ward  v. 
Neale  ^7  Ma.  "s<»;  Keats  v.  Hugo,  115  Mass.  204,  15  Am.  Rep.  80; 
Cherr'vv.  Stern/iiMd.  i,  Powell  v.  Sims.  5  W.  Va.  .,  1.?  Am.  Rep.  629; 
Mullen  V.  Strieker,  19  Ohio  St.  135.  ^  Am.  Rep.  379;  Kle'-  -^^'"""f ' 
2,  Tex.  Sup.  232,  78  Am.  Dec.  565;  I'lerre  v.  FernaUl,  26  Me.  436,  46 
Am  Dec.  573;  Morrison  v.  Marquardt.  24  Iowa,  63,  92  Am.  Dec.  444! 
Stein  V.  llauck,  s6  I"d.  65,  26  Am.  Rep.  10;  Ray  v.  Sweeney,  14  Hush. 
I  29  Am.  Rep.  383;  Lapere  v.  Luckey,  23  Kan.  5.34,  33  Am.  Rep.  196; 
■  Guest  V.  Reynolds.  68  111.  478,  18  Am.  Rep.  570;  Hayden  v.  Dutcher,  31 
N.  J.  (liqO  -!'7- 


§  3.    Qualified  property.— In  the  air. 

BRYANT  V.  LEFEVER. 


[4  C.  P.  D.  172.] 

English  Court  of  AppcaK  1879. 

Claim  alleged  that  the  defendants  occupied  premises  adjoin- 
in<r  the  plaintiff's  house,  and  that,  "betore  the  circumstances 
herein  set  out,  the  plaintiff  had  always,  and  for  much  more  than 
twenty  years,  a  free  access  of  air  to  his  chimneys,  which  were  on 
the  side  of  his  house  next  to  the  house  of  the  defendants.   About 


OPEIITV, 


ItUV  \\T   V.    I.KIKVKK. 


II 


another's   prop- 
ny  pres  imption 


ys; 


'There  is 


Ln<-lish  doctrine 

naUl,  26  Maine, 
C.)  31-:,  in  both 

or  necessities  of 
;  doctrine  of  the 

other  hand,  the 
I  man  to  erect  a 


tvn  premises, 


for 


n  his   neighbor's 

)itterness  of  feel- 

:hief. 

court  is  affirmed. 

Rep.  627;  Warti  v. 
4,  15  Am.  Rep.  80; 
I,  15  Am.  Rep.  629; 
;  Klein  v.  Sehrung, 
lald,  26  Me.  436,  46 

3,  92  Am.  Dec.  444; 
.  Sweeney,  14  15ush. 

4,  33  Am.  Rep.  196  j 
lyden  V.  Dutcher,  31 


H79. 

d  premises  adjoin- 
the  circumstances 
[or  much  more  than 
leys,  which  were  on 
defendants.   About 


the  month  of  June,  1S76,  and  after  the  phuntiff  was  in  occupa- 
tion of  his  said  house,  the  defcn(huits  raised  the  walls  of  their 
'louse  so  high,  and  put  stacks  of  timber  on  the  roof  of  the  said 
house,  so  as  to  interfere  witn  and  prevent  the  free  access  of  au- 
to the  plaintiff's  chimneys  and  prevented  a  proper  draught  in 
the  same,  and  the  plaintiff  was  totally  unable  to  use  his  said 
chinnieys,  and  the  enjoyment  by  the  plaintiff  of  his  house  was 
much  diminished  and  injured." 

Defence:  a  denial  of  the  allegations  of  the  claim.  Issue 
thcvcon.  Ai  the  trial  before  I.ord  Coi-KiunoE .  C.  J.,  and  a 
special  jury  during  the  Hilary  sittings  in  Middlesex,  1S7S,  the 
following  facts  were  proved  : 

The  plaintiffs  and  the  defendants  were  occupiers  of  adjoining 
houses  which  were  of  about  the  same  height.  Uefore  1S76  the 
plaintiff  was  able  to  light  a  fire  in  any  room  of  his  house  with- 
out the  chimneys  smoking;  the  two  houses  had  remained  in  the 
same  condition  some  thirty  or  forty  years.  In  1076  the  defend-^ 
ants  took  down  their  house  and  began  to  relnuld  it.  They  car- 
ried up  a  wall  by  the  side  of  the  plaintiff's  chimneys  much 
beyond  its  original  height,  and  stacked  timber  on  the  roof  of 
their  own  house,  and  thereby  caused  the  plaintiff's  chimneys  to 
smoke  whenever  he  lighted  tires. 

Lord  Coleridge,  C.  J.,  allowed  the  claim  to  be  amended 
by  introducing  an  allegation  that,  by  reason  of  the  facts  therein 
mentioned,  the  defendants  created  a  nuisance  to  the  injury  and 
prejudice  of  the  plaintiff  in  respect  of  his  enjoyment  of  his  house 

and  premises. 

The  jury  found  in  substance  that  for  more  than  twenty  years 
there  had  been  free  access  of  air  to  the  chimneys  of  the  plain- 
tiff's house,  and  also  that  the  erection  of  the  defendant's  wall 
sensibly  and  materially  interfered  with  the  comfort  of  human 
existence  in  the  plaintiff's  premises.  They  assessed  the  dam- 
ages at  /40,  and  Lord  Coi-ekidge,  C.  J.,  dnected  judgment 
to  be  entered  for  the  plaintiff. 

The  defendants  appealed. 

Hramwei.i.,  L.  J.— The  judgment  which  I  am  .-ibout  to  read 
is  that  of  Bkett,  L.  J.,  and  myself. 

The  plaintiff  says  that  he  is  possessed  of  a  house  ;  that  for 
more  than  twenty  years  this  house  and  its  occupants   have  had 


it-^wum.ii.iji  tj>i_.Mwwa-" 


,2  TI.E  CllAnACTElUST.CS  OF  PEBSONAI.  PROPERTV. 

,h.  ,vhul  blcv  to,  over,  .,,1  Com  i.,  and  thn.  h=  l'-'  -  J"  f-". 
1    ti,P  ri^rht  that  it  should  continue  to  do  so;    that  tne  ae 
::^:1      ..^      'rted  with  this  ri.ht  and  prevented  the  fee 
Se::::nd  dep^tu.  o^  the  winds ;  he  ^ds  ^^y^^^ 
mitted  a  nuisance  to  him  as  so  possessed.     He  has  p  m 
Z  is  no.sessed  of  a  house  move  than  twenty  years  old ,  that  tic 
^      C^ilcess  to  it  and  passage  over  it  fortw..ty  years  w.U. 
out  the  hindrance  recently  caused  by  the  ^'^f^l;^f^^ 
defendants  have  caused  a  hindrance  by  puttmg  on  the  loot 
tl  e     1  o     e  (which  is  as  old  as  the  plaintiff's),  timber,  to  aeon- 
^d!^:;:;:  hi.ht,  thereby  preventm.  the  wind  blo..n.    o  and 
over  the  plaintiffs  house  when  in  some  directions,  and  pass.n 
r;  y     om  it  when  in  others;  that  this  causes   ^^^   '^^---yj    .^, 
IL,  as  they  did  not  before,   to   the  extent  o    be.n      am- 
s.nce       The  question  is,  if  this  shows  a  cause  of  action.  J  ust, 
.        is  th    ri'ht  of  the  occupier  of   a  house  in  relation  to  air 
i;X-^enti;of  length  of  enjoymentP     It  ^^^^^^Z^t 
Vhich  land  and  its  owner  or  occupier  have;  it  is  -^       ^  ^^^ 
c.use  a  house  has  been  built;  that  pnts   no   greatei    buukn  or 
d      bi  ity  on  adpinin,  owners.     What,  then,  is  the  n,ht  of   and 
.u         owner  Jr  occupier?      It  is  to  have  all  natural  n.cident 
nd  advantages  as  nature  would  produce  them;    here  .     r  gh 
to  all  the  light  and  heat  that  would  come,   to   all   the  "'"  tnat 
vou Id  f  1     to  all  the  winds  that  would  blow;    a  right  that  the 
Tain  which  would  pass  over  the  land,  should  not  be  -^topped  and 
made  to  fall  on  it;  a  right  that  the  heat  from  the  sun  should  no 
b    stopped  and  reilected  on  it;   a  right  that  the  w-l  s-ld  n 
be  checked,  but  should  be  able  to  escape  freely;  and  ,t  it  weic 
possn  le  Unit  these  rights  were  interfered  with  by  "-    -.ng  no 
ri.ht,  no  doubt  an  action  would  lie.     But  these   natur      tights 
a^er, Object  to  the  rights  of  adjoining  owners,  who,  for  the  ben- 
efit oi  the  community,  have,  and  must  have,  rights  in  relation  to 
the  use  and  enjoymeiu  of  their  property  that  qualify  and   inte  - 
ee     itl>thosi/f  their  neighbors'   rights  to  use  their  property 
Lhe  various  ways  in  which  property   is   ^^^-^^fy^^'^t'Z 
ul  V  used.     A  hedge,  a  wall,  a  fruit  tree,  would  each  affect  the 
Hnd  nit  to  which  U  was  planted  or  built.     They   would   keep 
o«  some  light,  some  air,  some  heat,  some  rain,  when  com.ng 
from  one  direction,  and  prevent  the  escape  of   air,  of  heat,  o 
Zd.  of  rain,  when  coming  from  the  other.    But  nobody  could 


OPEUTV. 

c  has,  as  so  pos- 
o;    til  at  the  de- 
jvented  the  free 
t  they  have  corn- 
has  proved  that 
ars  old;  that  the 
venty  years  vvith- 
ndants;   that  the 
y  on  the  roof  of 
timber,  to  a  con- 
blowing  to  and 
ions,  and  passing 
his   chimneys  to 
of  being   a  nui- 
;  of  action.  lursf, 
in  relation  to  air 
the  same  as  that 
t  is  not  greater  be- 
Tveater   bnrdcn  or 
is  the  right  of  land 
natnral  incidents 
m ;  there  is  a  right 
,   all  the  rain  that 
;    a  right  that  the 
not  be  stopped  and 
1  the  sun  should  not 
;he  wind  should  not 
ely ;  and  if  it  were 
til  by  one  having  no 
hese   natural  rights 
1,  who,  for  the  ben- 
rights  in  relation  to 
t  qualify  and   inter- 
0  use  their  property 
ommonly   and  law- 
would  each  affect  the 
They  would   keep 
rain,  when  coming 
of   air,  of  heat,  of 
r.    But  nobody  could 


HKVAXT  V.   LEFEVER. 


13 


doubt  that  in  such  case  no  action  would  lie ;  nor  will  it  in  the 
case  of  a  house  being  built  and  having  such  consequences. 
That  is  an  ordinary  and  lawful  use  of  property,  as  much  so  as 
II  to  the  building  of  a  wall,  or  planting  of  a  fence,  or  an  orchard. 
Of  course  the  same  reasoning  applies  to  the  putting  of  timber 
on  the  top  of  a  house,  which,  if  not  a  common,  is  a  perfectly 
lawful  act,  and  it  would  be  absurd  to  suppose  that  the  defend- 
ants could  lawfully  put  anotV-er  story  '.o  their  house  with  the 
consequences  to  the  plaintiff  of  which  he  complains,  but  can 
not  put  an  equal  height  of  timber.  These  are  elementary  and 
obvious  considerations,  but  if  borne  in  mind  will  assist  very 
materially  in  the  decision  of  this  case. 

The  plaintiff,  then,  merely  as  possessed  of  land  or  house,  has 
not  the  right  claimed.     But  he  goes  further  and  says,  that  the 
liouse  and  its  owner  and  occupiers  have  had  the  enjoyments  of 
tills  benefit  for  twenty  years.     He,  therefore,  relies  on  that  as 
showing  a  prescriptive  title,  or  title  by  lost  grant.      Whether  he 
has  so  stated  his  claim  as  to  vahe  such  a  case,  it  is  lot  necessary 
to  say,  for  we  are  of  opinion  that,  even    if   he  has,  he  has  not 
established  it,  that  no  such  right  as  he  claims  can  be  established 
by  mere   enjoyment  without   interruption    for  however  long   a 
period.     It  certainly  can  not  be  claimed  under  the  Prescription 
Act  (3  and  3  VVm.  4,  C.  71),  nor  can  it  by  lost  grant,  unless 
of  such  a  character  that  it  could  be  claimed  by  the  common  law 
I'.rescription,  for  the  expedient  of  a  lost  grant  is  only  applicable 
to  cases  where  something  presents  the  application  of  the  com- 
mon law   prescription;  we  do  not  say   there  might  not  be  an 
express  grant  or  covenant  not  to  interfere  with  the  passage  of 
iiir  over  neighboring  property  which  could  be  enforced  against 
the  grantor  or  covenantor  or  even    against   his    assigns   with 
notice,  or  whether  it  could  against  assigns  without  notice  it  is 
not  necessary  to  say.     But  the  lost  grant  doctrine  is  ancillary  to 
ihe  common  law  prescription  doctrine ;   can   this  right  then  be 
claimed    under    that.'     Now,  certainly,  the    land    as   such  has 
t  njoyed  this  of  right  for  all  time,  since  the  sun  first  shone  and 
the  wind  first  blew  ;  and  it  is  not  a  case  of  twenty  or  any  finite 
luimber  of   years.      But   that  enjoyment   is    the  result    of    the 
natural  right  of  which  we  have  spoken,  and  not  of  an  acquired 
light.     Then  does  the  existence   of  a  house  on  the  land  for 
iwenty  years  make  any  difference?     None.     The  owner  of  the 


14  TlIK   CII.MIAITKKISTICS  Ol'    IT.llSONAI.  I'UOl-KRTV. 

lan>l  cnjovcd  the  free  passage  of  the  air  over  his  h.nd,  when  it 
^vas   a  Held,  subject   to  the  right  of  his  neiglibors  to  build  on 
their  own  land  or  to  do  on  their  own  land  any  lawful  act.     lie 
now   enjovs   it  over  his  land  with  a  house  on  it  subject  to  the 
same  riglUs.     If  the  house  on  his  land  is  less  commodious  by 
reason  of  any  lawful  act  of  his  neighbor  done  on  the  adjoining 
land,  then,  to  use  the  expression  of  the  judges  in  liuiy  v.  Pope. 
Cro    Fli/    iiS,  "it  was  his  folly  to  build  his  house  so  near  to 
the  other's  land."      It  may  be  said  that  if  this  reasoning  is  cor- 
rect, it   is   applicable   to   lights;   so  it  is  to  a  great   e^tent,  and 
anyone  who  reads  the  cases  relating  to  the  acciuisition  of  a  right 
to'li-iit  will  see  that  there  has  been  great  ditticulty  in  estalibsh- 
ingU  on  principle.     WiUes,  J.   says  it  is  anomalous;      Webb 
V.  Bird,  lo  C.  B.  (N.  S.),  at   p.    3S5,  and  per  Blackburn,  J., 
Webb   V.   Bird,    13  C.    B.    (N.   S.),    at  p.    844.     In  the  case 
referred   to  of  Bury  v.  Pope,  Cro.  Eliz.  iiS,  it  was  held  that 
where    there   are  owners  of  adjoining  pieces  of  land,  and  one 
builds  a  house,  and  for  thirty  or  forty  years  has  access  of  light 
to  it,  yet  the  other   may  build    a  house  adjoining  and  shut  out 
the  light.     This  shows  the  general  principle,  though  the  law  as 
to  light  is  now  different,  as  a  right  is  gained  to  it  by  enjoyment. 
But  there  is  this  difference  between  the  present  claim   and  the 
claim  to  light.      The  right  in  that  case  is  always  limited   to  the 
particular  window  or  aperture  through  which  the  light  and  air 
have  had  access  ;  it  is  one,  therefore,  against  which  an  adjoining 
owner  can  defend  himself  by  blocking  it  up  within  the  period 
necessary  for  the  gaining  of   a  right.     Lord  Wensleydale  (see 
Chasemore  v.  Richards,   7  "•  L-  ^  349>  «t  p.  3S5),  thought 
this  a  very  strong  thing  as  a  great  burden  on  the  adjoining  land 
owner.      But  here  the  claim  is  of  such  a  character  that  its  enjoy- 
ment  could   only  be   prevented  by  surrounding  the  land  with 
erections  as  high  as  it  might  at  any  time  be  wanted  to  bui  d  on 
the  land.     The    principle  of   Chasemore  v.  Richards,  7.  H.  L. 
C.  349,  is  applicable.,  namely,  that  the  right  claimed   is  not  the 
one   the   law   allows,  being  too   vague  and  uncertain;   one   the 
acciuisition  of  which  the  adjoining  owner  could  not  defend  him- 
self a-ainst;  and  that  the  remedy  of  the  plaintiff  in   such  a  case 
as  thil  is  to  build  higher,  as  in  such  a  case  as  that  it  vyas  to  dig 
deeper      We  are  of  opinion  that  on  principle  the  plaintiff  fails 
to  make  out  his  right  as  claimed;  the   authorities   are  to  that 


'W'U 


^■i 


■lUH'KRTV. 

his  land,  when  it 
hbors  to  builtl  on 
V  lawful  act.  lie 
)n  it  subject  to  the 
s  commodious  by 
;  on  the  adjoininjj; 
s  in  Huiy  v.  Pope, 

house  so  near  to 
s  reasoning  is  cor- 

great  extent,  and 
quisition  of  a  right 
ficulty  in  estahlish- 
nomalous ;  Webb 
per  Blackburn,  J., 

844.  In  the  case 
S,  it  was  held  that 
;s  of  land,  and  one 

has  access  of  light 
>ining  and  shut  out 
:,  though  the  law  as 

to  it  by  enjoyment, 
sent  claim  and  the 
jvays  limited  to  the 
ch  the  light  and  air 
t  which  an  adjoining 
3  within  the  period 
1  Wensleydale  (see 

at  p.  3i>5)i  thought 
n  the  adjoining  land 
iracter  that  its  enjoy- 
nding  the  land  with 
;  wanted  to  build  on 
.  Richards,  7.  H.  L. 
ht  claimed   is  not  thc 
l  uncertain ;   one   the 
ould  not  defend  him- 
aintiff  in  such  a  case 
;  as  that  it  was  to  dig 
iple  the  plaintiff  fails 
ithorities   are  to  that 


nitVANT  V.    I.KKEVEH. 


15 


effect.     Webb  v.  Bird,  10  C.  15.  (N.  S.)  26S ;  in  Ex.  Ch.,  13 
C.  H.  (N.    S.)  84 1,  is  really   in   point.     It   is  true  that  in  that 
case  the  mill  appeared  to  have  l)een    built    in    1S29.      I  believe 
the  date  of  the  building  of  the  plaintiff's  house  in  this  case  did 
not  appear;  it  will  hardly  be-  supposed  to  l)c  one  hundred  years 
old.    Hut  the  reasoning  in  that  case  would  be  equally  applicable 
to  a  claim  by  prescription  from  time  whereof  the   memory  of 
mail  runneth  not  to  the  contrary,  if  the  date  of  the  building  of  the 
phiintiff's  house  couUl  not  be  shown.     It   is  really   hardly  nec- 
essary to  notice  the  other  cases,  which  are  sufliciently  dealt  with 
by  the  judges  in  Webb  v.  Bird,  10  C.  B.  (N.  S.)  286,  in  Ex. 
Ch.,  13  C.  B.  (N.S.)  841.     We  may,however,  mention  Rob- 
erts V.   Macord,    i  Mo.  iS:   Ro.    230,    where  I'aterson,   J.,  was 
of  opinion  that  a  claim  like  the  present  could  not  be  supported. 
All  the  reasoning  and  all   the  considerations  in   Chasemore  v. 
Richards,  7  II.   L.  C.  349,  are   opposed   to   it.     WHiere   it  has 
been  said  that  there  is  a  right  to  air,  there  is  good   ground  for 
supposing  that  the  wholesomeness  of  the  air  had  been  interfered 
with,  or  that  there  was  some  peculiarity  in  the  land  or  building 
which  made  the  air  necessary  in   a  definite  place.     We  are  of 
opinion   then,  that   the  action  can   not  be   maintained   on  this 

ground. 

But   it  is   said    that   the  jury  have  found  that  the  defendants 
have   done  that   which   has   caused  a  nuisance  to  the  plaintiff's 
house.     W^e  think  there  is  no  evidence  of  this.     No  doubt  there 
is  a  nuisance,  but  it  is  not  of  the   defendant's  causing.     They 
have  done  nothing  in  causing  the  nuisance.     Their  house  and 
tlieir    timber    are    harmless    enough.     It    is    the    plaintiff  who 
causes  the  nuisance  by  lighting  a  coal  fire  in  a  place  the  chim- 
ney of  which  is  placed  so  near  the   defendant's   wall   that  the 
smoke   does   not   escape,  but  comesj  into   the  house.      Let  the 
plaintiff  cease  to  light  his  fire,  let   him    move  his  chimney,  let 
liim  carry  it  higher,  and  there  would  be   no   nuisance.     Who, 
then,  causes  it?    It  would  be  very  clear  that  the  plaintiff  did,  if 
ho  had  built  his  house  or  chimney  after  the  defendants  had  put 
up  the  timber  on  theirs,  and  it  is  really  the  same,  though  he  did 
•■o  before  the  timber  was  there.     But  (what  is  in  truth  the  same 
answer),  if  the  defendants  cause  the  nuisance,  they  have  aright 
to  do  so.     If  the  plaintiff   has  not  the  right  to  the  passage  of 
air,  except  subject  to  the  defendants'  right  to  build  or  put  tim- 


Ts-ji.^4uWr^.*-^--u:;j!i-'':^ 


,6  THE  CHAKACTEUISTICS  OF  PERSONAL  PnOPERTY. 

bers  on  thei.  house,  then  his  right  is  subject  to  ;Hci'^n|||>t^ 
thougl>  a  nuisance  follows  from  the  exercse  of  then  sht,  they 
nre  not  li'ible  Sic  utcrc  tuo  ut  alicuun,  mm  lacdas  s  a 
ZT^.^^^  in  our  opinion  the  defendants  do  not  .nfrn^ge 
it;  the  plaintiff  would  if  he  succeeded. 

Cotton,  L.  J.-This  is  an  appeal  of  the  defendants  from  a 
Uuh'ent  of  Lord  Coleridge,  in  favor  of  the  plan.  ,ff,  n. 
rrsp^rr  of  the  interruption  of  air  to  the  plaint.ffs  chu.ney 
caused  by  the  defendants.  ^^^  ^^^,^ 

Thp  iurv  have  found,  Jirit,  tnat  tncii. 
than  tJ  I  years,  free  access  of  air  to  the  chimneys  of  he 
„1  ant  Ufs  house  ;  sccond/y,  that  the  defendants'  wall  sens.bly 
an  mlrially  interfered  with  the  comfort  of  human  existence 
^tl^^dntiL  premises ;  J^.rm.  that  U.e  plainti  f  sustau.ed 
dnma-e  /•40  by  the  buildin-  of  the  defendants    wall.  ^ 

'■'The  first  q'uestion  is  whether  the  plaint.ff  ^-^^  -^her    s  a 
♦       1  ,\„U  of  m-onertv  or  as  an  easement,  a  right  as  agamst 

»„y  interruption  by  the  defcJ.tnts.     In  my  opnt.on  nc  hn> 
'"fnmfolHnion  it  wonl.l  be  ,  contrn.iiction  in  term,  to  say 
,„  t  a  ma°„»»  a  natural  r,„h.  against  !■«  '"^■f"^  '"""'Tn!. 

ifri;:r=,s;r^:^r^-:fr^^ 

rignt  10   Mipi'w  ^..ni-iort    he     n  the  absence  of 

„«r1  thprebv  requ  res  an  mcrcascd  suppott,  ne,       u.c 

o  U 'e  ul  erupted  «ow  of  air  to  his  ehimney  must   therefo  e 
bet  w"y  of  easement.     Cases  to  prevent  or  to  cla.m  damage 
fc,  intXuce  with  aneien.  iigh.s,  are  '«=.»«"«y  J*:";  ," 
cases  of  light  and  air.     But  this  ,s  tnaecurate^     J.^'o    light, 
1      relate  solelv  to  the    nterference   with   the  access  or  115,     , 
:*',      o  ease  1  any  injunetiou  been  granted  to  -""■-"'- 
••>,    fliP   access   of   air.       It   is  unnecessary  to   say 
:S:r  ir*;  nnilrntpted  How  of  air  through   a  de«,,Ue 


nOPERTY. 


tlUVAN T  V.   I-EIEVER. 


;o  their  rifjht  and 
[  their  r'^ht,  they 
on  lacdas,"  is  a 
ts  do  not  infringe 


;lc{cnclants  from  a 
;  the  phiintiff,  in 
ilainliff's  chimney 

lave  been  for  more 
ic  chimneys  of  the 
Units'  wall  sensibly 
f  human  existence 
;  plaintiff  sustained 
iits'  wall. 

tiff  has,  either  as  a 
t,  a  right  as  against 
lis  chimney  without 
y  opinion  he  has  no 

tion  in  terms  to  say 
;ighbor  in  respect  of 
ul  not  a  user  of  the 
igainst  his  neighbor, 
shown  by  the  cases 
lese  show  that  while 
ly  of  user,  a  natural 
buildings  to  his  land 
he,  in  the  absence  of 
iuch  support  by  user, 
f  any,  of  the  plaintiff 
iney  must,  therefore, 
t  or  to  claim  damages 
^quently  spoken  of  as 
•ate.     The  cases,  as  a 
1   the  access  of  light, 
anted  to  restrain  inter- 
iS  unnecessary  to   say 
ir  through   a  definite 


aperture  or  channel  over  a  neighbor's  property  has  been  enjoy- 
ed as  of  right  for  a  sutlicient  period,  a  right  by  way  of  ease- 
ment could  be  acquired.  No  such  point  is  made  in  this  case, 
and  I  am  of  opinion  that  a  right  by  way  of  easement  to  the 
access  of  air  over  the  general  unlimited  surface  of  a  neighbor 
can  notbeacqnired  by  mere  enjoyment.  Forthis.  Webb  v.  Jiird, 
lo  C.  B.  (N.  S.),  36S;  in  Ex.  Cli.  13  C.  15.  (X.  .S.)  841.  is  an 
authority;  and,  as  the  last  decision  in  tliat  case  was  in  the 
l.Nchiquer  Chamber,  it  would  be  sutlicient  to  lely  upon  tlie 
authority  of  that  case.  But  I  tiiink  it  better  to  say  that  I 
iiitirely  agree  with  that  decision  and  witli  the  reasons  given  in 
this  case  by  Bkamwei.i,,  L.  J.  In  my  opinion,  therefore,  the 
plaintiff  has  no  right  in  respect  of  the  tlow  of  air  to  or  from 
his  chimney. 

livery  man,  however,  has  a  natural  right  to  enjoy  the  air, 
jnne  and  free  from  any  noxious  smells  or  vapors,  and  anyone 
who  sends  onto  his  neighbor's  land  that  which  makes  the  air 
there  impure,  is  guilty  of  a  nuisance.  Here  it  is  found  that 
the  erection  of  the  defendant's  wall  has  sensibly  and  materially 
interfered  with  the  comfort  of  human  existence  in  the  plain- 
tiff's house,  and  it  is  said  this  is  a  nuisance  for  which  the  de- 
Icndants  are  liable.  Ordinarily  this  is  so.  but  the  defendants 
iiave  done  so  not  by  sending  onto  the  plaintiff's  property  any 
Mnoke  or  noxious  vapor,  but  by  interrupting  the  egress  of  smoke 
Irom  the  plaintiff's  house,  in  a  way  to  which,  as  against  the 
defendants,  the  plaintiff  has  no  legal  right.  The  plaintiff 
creates  the  smoke  which  interferes  with  his  comfort.  Unless 
he  has,  as  against  the  defendants,  a  right  to  get  rid  of  this  in 
tlie  particular  way  which  has  been  interfered  with  by  the  de- 
Irndants,  he  can  not  sue  the  defendants,  because  the  smoke 
made  by  himself,  for  which  he  has  not  provided  any  effectual 
means  of  escape,  causes  him  annoyance.  It  is  as  if  a  man  tried 
to  get  rid  of  liquid  filth  arising  on  his  own  land  by  a  drain  into 
his  neighbor's  land.  Until  a  right  hr.d  been  acquired  by  user, 
the  neighbor  might  stop  the  drain  without  incurring  liability  by 
so  doing.  No  doubt  great  inconvenience  would  be  caused  to 
tlie  owner  of  the  property  on  which  the  liquid  filth  arises.  But 
the  act  of  his  neighbor  would  be  a  lawful  act,  and  he  would  not 
be  liable  for  the  consequences  attributable  to  the  fact  that  the 


» 


33^3«f£"5^;^iE®5*' 


..--ia.!-.M!4!*.a'.J  -:■>■., 


.-tf-W  W 


,S  T.iU    U.A.CAC.KH.STICS    OF    .-KHSONAI.    ..ROrERTV. 

man  Inul    accumulated    llUh    witl.out    providinj^r    any    effectual 

means  of  ircUini;  lid  oi  il.  .  ^  i 

Tan.  of  upinion  that  ths  judgment   appealed   i.om   n.ust  l,c 

'■*''''''"''^'  Jud-mcnt  for  the  defendants. 

64  Miss.  4S3.  60  Am.  Uep.  62;  Dexter  v.  1  rce,  11,   HI.  ,.2,  ^""'-^ 


Pierce,  7  Giav,  iS,  6  Am.  Dec.  453- 


§  4.    Qualified  property.-In  the  water. 

DUMONT  V.  KELLOGG. 

[;9Mich.  42o;i8Am.  Rep.  4-^0.] 

Supreme  Court  of  Michigan,  1874. 

Coo,  FY    T  -The  grievance  complained  of  by  Kellogg  in  the 
com"elo:v.a.that    Dumont  had  constructed  a  dam  across 
°U      !    vater-course  and  by  means  thereof  wrongfully  detamed 
"in  the  .trcam  to  the  prejudice  and  injury  of  the  plam- 
«       h     was   proprietor  of   a   mill  previously  erected   on  the 
^■u       clow.     tL  reservoir  created  by  defendant's  dam  wa^ 
cu  t    a  b.-.e  one,  and  plaintiff  gave  evidence  that  the  flow 
Ta  tr   n  the  stream  below  was  considerably  dimm.shed  by  the 
Tc  e..  ed    vaporation  and  percolation  resulting  from  the  con- 
s  ;    ;•   n  ot  this  dam.     The  plaintiff  had  judgment  n.  the  cou, 
b  low      nd  the  case   comes   here  upon   exceptions,    the   erro  . 
p  ■      ;  Iv  relied  upon  being  assigned  upon  the  n.struct.ons  to 
h    hr     and  involving  the  relative  rights  of  ripar.an  proprietors 
to  make'  u^e  of  the  w^Uers  of  a  running  stream  wh.ch  .s  common 
tn  both    and  to  delay  its  How  for  that  purpose. 

r»f  t)i(>c;t>  ire  the  following: —  , 

.Fver     proprietor  of  lands  on  the  banks  of  a  stream  a,.l 

ever'   m   l-vner  has  an  ec,ual  right  to  the  flow  of  wa  er  m  th. 

„  it  was  wont  to  run,  without  diminution  or  alteration, 


t: 


m 


PROI'KIITV. 

iny  any  effectual 
led  from  must  be 
for  the  defciulants. 

bha-.il  v.Town"  refer 
•.  l?(K\i(l  of  Aldermen, 
7  111.  532;  Collier  v. 


nUMONT   V.    KHI.T.Or.G. 


19 


G. 

;o.] 

of  by  Kellogg  in  the 
cted  a  dam  across  '^ 

wrongfully  detained 
d  injury  of  Hie  plain- 
)usly  erected   on  the 
Icfendant'h  dam  was 
ence  that  the  flow  of 
ly  diminished  by  the 
uilting  from  the  con- 
judgment  in  the  court 
xceptions,   the   errors 
on  the  instructions  to 
3f  riparian  proprietors 
earn  which  is  common 
rpose. 

and  the  most  of  them 
,  be  based  upon  a  view 
[  with  the   authorities. 

uiks  of  a  stream  and 
le  tlow  of  water  in  the 
minution  or  alteration; 


DO  proprietor  has  'he  riglit  to  use  the  water  to  tlie  prejudice  ni 
the  proprietors  below  him  without  the  consent  of  the  projirielors 
I'olnw;  lie  can  not  divert  or  diminish  tiie  (|iiautitv  wiiicli  would 
(ilherwise  descend  to  the  piojirietors  below. 

'•He  must  .so  use  the  water  as  not  mateiiMlly  to  affect  the 
aiiplication  of  the  water  below  or  n^iterially  diminish  its 
(jiiaiility. 

'•If  the  jiuy  find  from  the  evidence  th.-it  Dumont's  dam  and 
pond  have  diminished,  by  the  increased  evaporation  and  soak- 
age  occasioned  by  it,  the  flow  of  the  water  in  the  Dumont  Creek 
cue  third,  or  any  other  material  amount,  and  tiiat  the  jilaintiff 
has  sustained  ilamages  thereby,  then  tiie  plaintiff  is  entitled  to 
recover  in  this  action. 

"The  rights  of  a  riparian  proprietor  are  not  to  be  measured 
bv  the  reasonable  demands  of  his  bnsiness.  Jlis  right  extends 
to  the  use  of  only  so  much  of  the  stream  as  will  not  materially 
diminish  its  quantity,  so  that  in  this  case  the  question  whether 
defendant  needs  the  water  as  he  uses  it  in  his  business  is  entirely 
immaterial. 

"The  defendant  had  the  right  to  build  a  dam  upon  his  land, 
but  he  must  so  coust'-uct  the  dam  and  so  use  the  water  as  not 
to  injure  the  plaintiff  below  in  the  enjoyment  of  the  same  water, 
according  to  its  natural  course." 

In  endeavoring  to  determine  the  soundness  of  these  instruc- 
tions, we  may  dismiss  from  the  mind  the  fact  that  the  plaintiff 
had  first  put  the  waters  of  the  stream  to  practical  use,  since 
that  fact  gave  him  no  superiority  in  right  over  the  defendant- 
The  settled  doctrine  now  is  that  priority  of  appropriation  gives 
to  one  proprietor  no  superior  right  to  that  of  the  others,  unless 
it  has  been  continued  for  a  period  of  time,  and  under  such  cir- 
cumstances as  would  be  requisite  to  establish  rights  by  prescrip- 
tion. Piatt  V.  Johnson,  15  Johns.  213;  Tyler  v.  Wilkinson,  4 
Mason,  397;Gilman  v.  Tilton,  5  N.  H.  231  ;  Pugh  v.  Wheeler, 
2  Dev.  ^  'iat.  50;  Hartzai:  v.  Sill,  12  Pa.  St.  24S ;  Gould  v. 
r>oston  Duck  Co.,  13  Gray,  442;  Wood  v.  Edes,  2  Allen,  57S; 
Parker  v.  Hotchkiss,25  Conn.  321  ;  Heath  v.  Williams,  25  Me. 
209;  Snow  V.  Parsons,  28  Vt.  463;  Bliss  v.  Kennedy,  43  III. 
67:  Cowles  V.  Kidder,  24  N.  H.  37S.  It  is  not  claimed  that 
any  question  of  prescription  is  involved,  and  the  case  is  conse- 
quently to  be  regarded  as  only  nreseuting  for  adjudication  the 


,^5BSaSi^.^.'«m^''':":gy"^"^'-^'*^'-''^-- 


2„     Tin:  CHAHA.  ,.:.MST..S  or  rKUSONAL  PKOfKRTV. 

relative  ri.M.ts  ot  tl.e  parlies  at  tl,e   common  lawt..  n.akc  use  of 
the  Mowing:  waters  of  the  stream,  unaffected  by  any  excepl.onal 

circumstanccH.  ,     ,  .1     ^..t^„t 

A,ul  in  consi.lcrin,^  the  case,  it  may  be  remarked  at  the  ont.et 

t,,a,  it  differs  essentially   from  a    case    in    which    a    stream   has 

been  diverte.l  from  its  natural  course  and  turned  away  from  a 

proprietor  below.     No  person  has  a  r-Rht  to  cause  such  a  d.ve,- 

ion.  and  it  is  whoUv  a  wron,.ul   act,  for  which   an  act.on  wd 

,i,  ,H,,„.,t  p,.o..f  of  special  dan,a,e.      It  differs,  also,  from  Ha 

case  of  an  interference  by  a  stranger,  who,  by  any  means,  or  for 

any  cause,  diminishes  the  flow   of   the   water ;  for  th.s  a  so   .s 

.d'dly  wrongful,  and  no  question  of  the  -— f^^'-^-;/, 

action  in  causing  the  diminution  can  possd.ly  ar.se.     And  had 

the  instructions  which  are  excepted  to   been   given  w.th   icte- 

ence  to  a  case  of  diversion,  or  of  obstruction  by  a  stranger,  the 

broa.l  terms  in  which  the  responsibility  of  the  ^l^-'--^-^  - 

l,ia  ,iown  to  the  jury  might  have  found  abundant  3ustd.cat.0n 

in  the  authorities,  ,  .     , 

Hut  as  between  two  proprietors,  "eitber  of  vvho.n  has  acq,..red 
superior  rights  to  the  other,  it  can  not  be  sa.d  that  one  "1  as  no 
:■. Iht  to  us:  the  water  to  the  prejudice  of  the  proprietor  below 
him  "  or  that  he  can  not  lawfully  -diminish  the  quant.ty  wh.ch 
woubl  descend  to  the  proprietor  below,"  or  that   "b.   must  so 
use  the  water  as  not  materially  to  affect  the   appbcat.on  of  the 
water  below,  or  materially  to  diminish  its  quant.ty         Such  a 
nde  would  be  in  effect  this:     That  the  lower  propr.etor  must 
be  allowed  the  enjoyment  c    his  full  common  law  r.ghts  as  such 
not  diminished,  restrained,  or  in  any  manner  l.m.ted  or  quahh  d 
by  the  rights  of  the   upper  proprietor,   a.Kl   must  recc.ve  the 
Tater  in  its  natural   state   as   if   no  proprietorship  above  him 
existed.     Such  a  rule  could  not  be  vhe  law  so  long  as  equality  of 
right  between  the  several  proprietors  w  s  recogn.zed,  for  it  .s 
nTanifest  it  would  give  to  the  lowe-    proprietor  -P-'-"  ^  ^J  " 
tages  over  the  upper,  and  in  ma.iy  cases  g.ve   h.m   m   effect  a 
monopoly  of  the  st.eam.  r  1     , 

Cases  may  unquestionably  be  found  in  which  the  rule  of  law 
is  l-iid  down  as  broadly  as  it  was  given  by  the  circuit  judge  .n 
;  ;  c  se ;   but  an  examination  of  them  will  show  either  that  the 
nets  were  essentially  different,  or  that  the   general   language 
was  qualified  by  the  context.     Thus  the  language  employed  m 


fe, 


PllOIM-.IlTY, 


DUMONT   V.    KEM.rKiO. 


at 


aw  to  iiiiikc  use  of 
jy  nny  exceptional 

arkeil  at  the  oiitaet 
lich   a   stream   has 
i-neil   away  from  a 
cause  such  a  ilivcr- 
hich   an  action  will 
fers,  also,  from  the 
y  any  means,  or  for 
tor;  for  this  also   is 
asonablcness  of  his 
ly  arise.     And  had 
{riven  with   rcfer- 
11  by  a  strans^er,  the 
the  defendant  was 
undant  justification 

[  whom  has  acquired 
lid  that  one  "has  no 
he  proprietor  below 
h  the  quantity  which 
r  that   "1k'   must  so 
;  application  of  the 
quantity  "     Such  a 
wer  proprietor  must 
)n  law  rights  as  such, 
?r  limited  or  qualified 
lid   must  receive  the 
■ietorship   above  him 
so  long  as  equality  of 
recognized,  for  it  is 
ietor  superior  advan- 
Tive   him   in   effect  a 

which  the  rule  of  law 
f  the  circuit  judge  in 
11  show  either  that  the 
the  general  language 
language  employed  in 


till-  first  instruction  as  above  given  seems  to  have  been  quoted 
hoin    I.onl    Tente'-den    in    Mason   v.    Hill,    ,:^  M.  i\:  i\dol.  31  J. 
r.ut  th'-re  it  had  reference  to  a  case  of  diversion  of  water,   and 
\\as  strictly    accurate    and   apiJiopriale.      The    same    language 
Milislantially  is  made  use  of  in  'I'wi-s  v.  Haldun;.  '^Conn.  J91  ; 
Wadsworth  V.  Tillotson,    i^   Conn.    373:    Ainold  v.    lM)ot,  \i 
Wend.  331  ;   and  probably  in  many  other  cases,  and  is  adopted 
l.y  Cliancellf)r  Kent  in  his  Commentaries  (vol.  3,  p.  431;).     See 
also  r.caley  v.   Shaw,    f>   I'^ast,    ioS ;     Agawam   Canal   Co.    v. 
I'.dwards,  36  Conn,  .pj;  ;    Williams  v.  Morland.  z  H.  iS;  C.  913; 
Mason  V.  Hill,  5  H.  iV  Adol.  1  ;   Tillotson  v.  Smith,  32  N.  II. 
(,T.     Hut  as  between  different  proprietors  on  the  same  stream, 
the  right  of  each  (jualilies  that  of  the  other,    and    the   question 
always  is,  not  merely  whether  the  lower  proprietor  suffers  dam- 
a<4e  bv  the  use  of  the  water  above  him,  nor  whether  the  (pian- 
lity  flowing  on  is  diminished  by  the  use,  but  whether  under  all 
the  circumstances  of  the  case   the   use   of    the  water  by  one  is 
leasonable  and  consistent  with  a  coi respondent   enjoyment  of 
rij;lit  by  the  other.     "Each  proprietor  is  entitled  to  such  use  of 
the  stream  so  far  as  it  is  reasonable,  conformable  to  the  usages 
and  wants  of  the  community,  and  having  regard  to  the  progress 
of  improvement  in  hydraulic  works,   ard  not  inconsistent  with 
a  like  reasonable  use  by  the  other  proprietors  of   land  on  the 
same  stream  above  and   below."     Shaw,   Ch.   J.,    in   Cary  v. 
Daniels,  8  Mete.  477.      "The  common  use  of  che  water  of  a 
stream  by  persons  having  mills  above,  is  frequently,  if  not  gen- 
erally, attended  with  damage  and  loss  to  the  mills  below;   but 
that  is  incident  to  that  common  use,  and  for  the  most  part  una- 
voidable.    If    the    injury    is    trivial,    the    law    will    not  afford 
redress,  because  every  person  who  builds  a  mill  does  it  subject 
to  this  contingency.     The  person  owning  an  upper  mill  on  the 
same  stream  has  a  lawful  right  to  use  the  water,  and  may  apply 
it  in  order  to  work  his   mills  to  the    best    advanta-^c,    subject, 
however,  to    this    limitation:      That  if,   in  the  exercise  of  this 
right,  and  in  consequence  of  it,  the  mills  lower  down  the  stream 
are  lendered  useless  and  unproductive,  the  law  inthatcase  will 
interpose  and  limit  this  common  right  so  that  the  owners  of  the 
lower  mills  shall  enjoy  a  fair  participation."     Woodworth,  J., 
in  Merritt  v.  Brinkerhoff,  17  Johns.  321.     It  is  a  tuir  participa- 
tion and  a  reasonable  use  by  each  that  the  law  seeks  to  protect. 


''mamsf- 


i^iagE:s£;--cur^!s- 


™ 


23     THE  C.AUACTEU.STICS  OF  PEUSONM.  PUOPKKTV. 

Such  interruptioa  in  the  flow  "as  is  necessary  and  unavoidable 

J;      111  ,lPn  St  !!;  Ilartzall  v.   Sill,    i=  I'a-  St.    24!>  ■ 

";,  4\Ht,    40      .o  hold  .1...  .here    can  be  „o  dimi„ut,o„ 
:   ;,  ve     li  no  ;bs.n,c.lon  or  lm„eai,™..t  whatsoever     by  a 
:^:;;::,o,rla„rin.W.e.wa.er»ln^^ 

X^-tr-^rrs'Ll.   .o   aL 

Mnllfea..,    3    C»'"-.   f  ■     "'     '-       ,.   wakbon,  44  N.  H. 

rrr:* '-enio;.:^:;  «.  .be  co,„„,'o.r  n.,,.  ca„  Ceoran.  „o 

"  wr'tbinU  the  conr.  erre.l  aUo  in  declining  to  instrnc.  the 
.  L,Ur,es  reouest  tlr-t  in  Jctermining  tbc  q.iesl.on  o£ 

proper  ..e  of  .bat  wb.cb  „  a  '^  ^  . '  f  . ;, j',     „,  „  ,„e  gen- 
evidence  of  ,be  ,ac,.  consen   of  al^p.  r Ues  ^^  ^^^^^.^^^  ^ 

eral  convenience  of  sncb  nse.       ■^"•' «=  /  ^^^^   ,„  „„, 

°"''  r '  rof'  :  «;ri:;      .is'-orfand  c„„c,n,ive  .bat 

r,d  bradS':::,,  be;,;  e3.ab,i.ed  by  .be  P---7: , 

thin"  which  was  not  so. 


U 


,    PUOPEKTY. 

ly  and  unavoidable 
11  privilee;-  above" 
ler  V.    Ilowland,   7 
cch.  353;    Hetrich 
,    13   Pa.   St.    248; 
iss   V.   Kennedy,  -P 
in  Tyler  v.  Wilkin- 
n  be  no  diminution 
it  whatsoever,    by  a 

ilows,  would  be  to 
le  and  there  must  be 
;i  reasonable  use  by 
mportant,  Palmer  v. 
Lurray,  6  Ind.    324; 

Waldron,  44  N.  H. 
nd  Clinton  v.  Myers, 
is,  therefore,  not  a 
one,  or  an  alteration 
;umstances  combined 
n,  if  in  view  of  all  the 
lity  of  right  in  others, 
ses  the  injury  is  not 
^  that  is  incidental  to 
right  can  demand  no 

:lining  to  instruct  the 
mining  the  question  of 
light  consider,  among 
untry  in  similar  cases. 

Co.,  13  Gray,  452: 
lered  a  reasonable  and 
ight,  because  it  affords 
es  interested  to  the  gen- 
ie Thurber  v.  Martin,  2 
459.  Indeed  in  most 
tory  and  conclusive  that 

the  parties  concerned, 
what  is  reasonable  and 
ely  to  acquiesce  in  any- 


GODDARD    V.    WIXCIIKLL.  23 

These  errors  render  it  necessary  to  order  a  new  trial.     Some 
of  the  rulings  on  the  admission  of  evidence  sc.  m  to  have  been, 
virv  liljcral,  but  we  are  not    satisfied    that    they  exceeded  the 
KUinds  of  judicial  discretion. 

The  judgment  will  be  reversed,   with   costs,   and  a  new  trial 
ordered. 

The  other  judges  concurred. 

Consult— Clinton  v.  Myers,  46  N.  Y.  511,7  Am.  Rep.  373;  Cooper 
V.  Williams,  4  Ohio.  .153,  22  Am.  Dec.  745;  Kiidy  v.  .Simpson,  3  Cal. 
2-19,  5SAm.  Dec.  40S;  Stein  v.  IJiirden,  29  .Via  127,  fi5  .\ni.  Dec.  294; 
Davis  V.  Getchell,  50  Me.  604,  79  Am.  Dec.  63;  Moulton  v.  Water  Co., 
137  Mass.  163;  Snow.  V.  Parsons,  28  Vt.  459,  67  Am.  Dec.  723;  Uliss  v. 
Ker.iieuy,  43  111.  67;   City  of  Emporia  v.  Sodcn,  25  Kan.  5SS. 


§  5.    Qualified  property.— In  wild  animals. 

See  Pierson  v.  Post,  post,  §  35. 

See  Manning  v.  Mitcherson,  post,  §  36. 

§  6.  Test  of  real  as  distinguished  from  personal  prop- 
erty.   (1)    Immoy  ability. 

GODDARD  V.  WINCHELL. 

[86  Iowa,  71.3 
Sitfrauc  Court  of  lo-.ca,  i8g2. 

Granger,  J. — The  district  court  found  the  following  facts, 
with  some  others  not  important  on  this  trial:  ''That  the 
plaintiff,  John  Goodard,  is,  and  has  been  since  about  1857, 
the  owner  in  fee  simple  of  the  north  half  of  section  No.  3,  in 
township  No.  98,  range  No.  25,  in  \Vinnel)ago  county,  Iowa, 
and  was  such  ow"  ;r  at  the  time  of  the  fall  of  the  meteorite 
hereinafter  referred  to.  (2)  That  said  land  was  prairie  land, 
and  that  the  grass  privilege  for  the  year  1890  was  leased  to  one 
.lames  Elickson.  (3)  That  on  the  cecond  day  of  May,  1890, 
an  aerolite  parsed  over  northern  and  northwestern  Iowa,  and 
the  aerolite,  or  fragment  of  the  same,  in  question  in  this  action, 
weighing,  when  replevied,  and  when  produced  in  court  on  the 


^-^.g5s?^iy?pwsr 


2_,.  Till-    lHAIiAl  TF.KISTICS    Oh'    PEUSONAI.    I'UOPKUTY. 

trill  of  tl.is  cause,   about  sixty-six  pounds,  fell  onto  plaintiffs 
l,,ul     described    above,  and    buried    itself  in    the    ground  to  a 
depth  of  three   feet,  and   became    imbedded   therein   at  a  pomt 
■d-out  twenty   rods    from    the   section  line  on  ti.e  north.      (4) 
Tliit  the  day  after  the  aerolite  in  ciuestion  fell  it  was  dug  out  ot 
the'  ground  "with  a  spade  bv  one  Peter  Hoagland,  in  the  pres- 
ence of  the  tenant.  Elickson;    that  said   Iloagland  took  it  to  h>s 
house    and   claimed   to  own   same,  for  the  reason  that  he  had 
found' same  and  dug  it  up.      (5)     That  on  M.ay  5,  1S90,  Iloag- 
l,nd  sold  the  acrobte  in  suit  to  the  defendant,  II.  V.  Wnichcll. 
for  $105,  and    the    same  was   at   once    taken    possession  of  by 
said'^  defendant,  and  that  the  possession  was  held  by  him  until 
same   was  taken  under  the   writ  of   replevin  herein;  that  de- 
fendant   knew    at    the    time    of    his    purchase    that  it    was    an 
aerolite,  and   that  it   fell  on   the   prairie    south   ot    Iloagland's 
,.,„a  ,   (10)     I  thul   the    value  of  said   aerolite  to  be  one 

lunuired  and  one  dollars   ($101)  as  verbally  stipulated  in  open 
court  bv  the  parties  to  this   action;  that  the  same  weighs  about 
sixtv-six   pounds,  is  of  a  black,    smoky   color  on   the    outside, 
showin-  tlie   effects  of  heat,  and  of  a  lighter   and  darkish  gray 
color  on  the    inside;   that  it  is  an    aerolite,    and  tell  Irom  the 
heavens  on  the  second   of  May,  iSyo;   and   that  a  member  ot 
Hoacrland's   familv   saw  the  aerolite  fall,  and   directed  him    to 
it  ••  "  As  conclusions  of  law,  the  district   court  found    that  the 
•lerolite   became  a   part  of  the   soil    on    which  it  fell;   that  the 
plaintiff  was  the  owner  thereof ;   and  that  the  act  of  Iloagland 
i„    removing  it  was   wrongful.      It  is  insisted   by  appellant  that 
the    conclusion,    of    law    are    erroneous;  that    the  enlightened 
demands  of  the  tin.es  in  which  we  live  call  for,  if  not  a  modi- 
fication, a  liberal   construction  of  the   ancient  rule  "that  what- 
ever is   aiVixed  to  the  soil   belongs  to  the   soil,"   or,  the    more 
modern    statement  of  the    rule,  that  "a  permanent   annexation 
to  the    soil  of  a  thing    in  itself   personal   makes  it  a   part  of  the 
realty."      In  behalf  (^f  appellant  is  invoked  a  rule  alike  ancient 
•uulof  undoubted    merit,  "that   of    title   by  occupancy;"   and 
we  arc  cited  to  the  language  of  Blackstone,  as  follows:  "Occu- 
pancy is    the  taking    possession  of  those    things    which  before 
bclon-ed    to    nobody;"   and    -whatever    movables   are    found 
upon  "the    surface  of  the  earth,  or  in  the  sea,  and  are  unclaimed 
bv  any  owner,   and  supposed  to  l^e   abandoned  by  the  last  pro- 


k  , 


I'UOPKItTY, 


GonnARD  V.  wixciiEi.r,. 


ell  onto  plaintiff's 
I  the  ground  to  a 
therein  at  a  point 
n  t'ue  north.  (4) 
1  it  was  dug  out  of 
Inland,  in  the  pres- 
jland  took  it  to  his 
cason  that  he  had 
:ay  5,  1S90,  rioag- 
:,  II.  V.  Winchell, 
n  possession  of  hy 
5  held  by  him  until 
n  herein;  that  de- 
se  that  it  was  an 
nth   of   lioagland's 

aerolite  to  be  one 
7  stipulated  in  open 
same  weighs  about 
or  on  the  outside, 
r  and  darkish  gray 
and  fell  from  the 

that  a  member  of 
nd  directed  him  to 
nirt  found  that  the 
ich  it  fell;  that  the 
he  act  of  Iloagland 
d  by  appellant  that 
lat  the  enlightened 
1  for,  if  not  a  modi- 
:nt  rule  "that  what- 
ioil,"  or,  the  more 
rmanent  annexation 
akes  it  a  part  of  the 
,  a  rule  alike  ancient 
y  occupancy;"   and 

as  follows:  "Occu- 
tliings  which  before 
iiovables  are  found 
1,  and  are  unclaimed 
jned  by  the  last  pro- 


iirictor.  and    as  such   are   returned    into  the   common  stock  and 
mass  of    things;   and    therefore    they    belong,  as  in  a   state  of 
nature,  to  the  iirst  occupant  or  tinder."      In  determining  which 
of  these  rules   is  to  govern  in  this  case,  it  will  be  well  for  us  to 
keep  in  mind  the    controlling    facts  giving  rise  to  the  different 
rules;   and  note,  if  at  all,  wherein  the  facts  of  this  case  should 
distinguish  it.     The  rule   sought  to  be  avoided  has  alone  refer- 
ence to  what  becomes  a  part  of  the  soil,  and  hence   belongs  to 
the  owner  thereof,  because   attached  or  adiled  thereto.     It  has 
no  reference   whatever  to  an   independent   acquisition  of  title — 
that   is,  to   an    acquisition   of   property   existing   independent  of 
other  property.     The  rule  invoked  has  reference  only  to  prop- 
erty of  this   independent  character,  for  it   speaks  of  movables 
"found  upon   the  surface  of  the   earth   or  in  the   sea."      The 
tcin,    "movables"  must  not  be   construed  to  mean  that  which 
can  be  moved,  for,  if  so,  it  would  include   much  known  to  be 
realty;  but  it  means   such  things  as  are  not  naturally  parts  of 
earth   or  sea,   but  are   on  the   one   or  in  the   other.     Animals 
exist  on  the   earth   and  in  the  sea,  but  they  are  not,  in  a  proper 
sense,  parts   of  either.     If  we   look  to  the   natural   formation  of 
the    earth    and   sea,   it   is  not    dilhcult  to   understand    what  is 
meant  by  "movables,"  within  the  spirit  of  the-  rule  cited.      To 
take  from  the   earth   what  natin-e  has   placed  there  in  its  forma- 
tion, whether  at  the   creation  or  through  the  natural  processes 
of  the   acquisition   and   depletion  of  its   particular  parts,  as   we 
witness  it  in    our   daily     observations,   whether  it  be  the   soil 
proper   or   some   natural    deposit,    as    of    mineral    or  vcgtablc 
matter,  is  to  take  a  part  of  the  earth,  and  not  movables. 

if,  irom  what  we  have  said,  we  have  in  mind  the  facts 
giving  rise  to  the  rules  cited,  we  may  well  look  to  the  facts  of 
tliis  case  to  properly  distinguish  it,  •  The  subject  of  !thc  dis- 
pute is  an  aerolite,  of  about  sixty-six  pounds  weight,  that  "fell 
from  the  heavens"  on  the  land  of  the  plaintiff,  and  was  found 
three  feet  below  the  surface.  It  came  to  its  position  in  the 
earth  through  natural  causes.  It  was  one  of  nature's  deposits, 
with  nothing  in  its  material  composition  to  make  it  foreign  or 
mmatural  to  the  soil.  It  was  not  a  movable  thing  "on  tlie 
earth."  It  was  in  the  earth,  and  in  a  very  significant  sense 
immovable — that  is,  it  was  only  movable  as  parts  of  earth  arc 
made  movable  by  the  hand  of  man.     Except  for  the  peculiar 


^r.  Tin:    C.IAUACTEIUSTICS  OF    PERSONAI,    PUOl'ERTY. 

„,,„ncr   in  .hich   it   ca.nc,   its   relation   to   the   soil    would  be 
bcvona   dispntc.     It  was   in  its   substance,  as  -o  undr.  Und    a 
stone.     It  was   not  of   a   character  to  be  thought  ot   as      nn 
clain.ed  by  any  owner,"  and,  because  "-lainjed    '-supposed    o 
be   abandoned   by  the   last  proprietor,"  as   should  be  the   case 
under  the  rule   invoked  by  appellant.     Infact.it  has  none  of 
the   characteristics  of  the  property  contemplate.!  by  such  a  rule 
We    may    nroperlv    note    some   of  the   particular   clauns    ot 
appellant.      His  argument  deals  with  the  rules  of  the  common 
law  for  acquiring  real   property,  as  by  escheat,  occupancy,  pre- 
scription,   forfeiture,    and   alienation,  which   it  ,s   churned  we  e 
all   the   methods  known,   barring    inheritance.       We   need  not 
Cuestion  the   correctness  of  the  statement,  assummg  that  it  has 
.efereuce  to   original   acquisition,  as  distinct  frmn   acc,u,sit.ons 
to  soil  already   owned,  by  accretion  or  natural    causes,      i  he 
general  rules  of  the  law,  by  which  the  owners  of  r.panan  titles 
L   made  to  lose    or  gain    by    the    doctrine  of    accretions,  are 
quite   familiar.      These   rules    are   not,    however,  of    .^^^^ 
application   to   such   owners.     Through   the   action  of  the  el  - 
uunts,    wind    and    water,  the    soil   of    one    luan    is   taken    and 
deposited  in  the  field  of  another;   and  thus  all  over  the  coun- 
trv,  we  may  sav,  changes  are   constantly  going  on.     By  these 
n.Uural   causes  "the  owners  of  the  soil  are  giving  and  taking  as 
the   wisdom    of   the    controlling    forces   shall    determme.     By 
these  operations  one  may  be  affected  with  a  substantial  gain, 
and  another  by  a  similar  loss.     These  gains  are  of  accretion 
and  the  deposit  becomes  the  property  of  the  owner  of  the  sod 

on  which  it  is  made.  u      j  .    i 

A  scientist  of  note  has  said  that  from   six  to  seven  bundled 
of   these    stones   fall    to  our    earth    annually.     If  they  are,    as 
indicated   in   argument,  departures  from   -^ ;^'^^^^^ 
,.non-  the  planets  of  the  solar  system  there  is  this  inteichangc 
bearing   evidence    of    their   material    composition,   upon    what 
principle  of  reason  or  authority  can  we  say  that  a  deposit    hus 
nade  shall  not  be  of  that  class  of  property  that  it  would  be 
if    originally    of   this  planet    and    in    the    same     situation.?     If 
these    excb.anges  have    been    going  on  through    the    countless 
ages  of' our  planetary  system,  who  shall  attempt  to  determine 
^vhat  part  of  the  rocks  and  formations  of  especial  value  to  the 
scientist,  resting  in  aad  upon  the  earth,  are  of  meteoric  acqui- 


-,.J»BI«te*!«Wi>»- 


ROPERTY. 


GOnDARD  V.  WIXCHEI.L. 


27 


c   soil   would  be 
wo  understand,  a 
.ujiht   of   as  '-un- 
cd,  "supposed  to 
lould  be  the   case 
:t,  it  has  none  of 
ed  bv  such  a  rule, 
ticular   claims    of 
OS  of  the  common 
;,  occupancy,  pi'C- 
it  is   claimed  were 
:.       We   need  not 
suming  that  it  has 

from  acciuisitions 
Liral  causes.  The 
•s  of  riparian  titles 

of  accretions,  are 
•ever,   of    exclusive 

action  of  the  elc- 
man  is  taken  and 
;  all  over  the  coun- 
)ing  on.  By  these 
iving  and  taking  as 
ill  determine.  By 
I  a  substantial  gain, 
ns  are  of  accretion, 
lie  owner  of  the  soil 

iix  to  seven  hundred 
ly.     If  they  are,    as 
ther  planets,    and  if 
e  is  this  interchange, 
)osition,   upon    what 
r  that  a  deposit  thus 
rty  that  it  would  be 
same     situation.?     If 
rough    the    countless 
attempt  to  determine 
especial  value  to  the 
:e  of  meteoric  acqui- 


sition, and  a  part  of  that  class  of  property  designated  in 
argument  as  "unowned  things,"  to  be  the  property  of  the 
fuitunate  finder  instead  of  the  owner  of  the  soil,  if  the  rule 
cimti-nded  for  is  to  obtain?  It  is  not  easy  to  understand  why 
sKiiies  or  balls  of  metallic  iron  deposited  as  this  was,  should 
hi'  iroverned  by  a  different  rule  than  obtains  from  the  deposit 
ot  boulders,  stones,  and  drift  upon  our  prairies  by  glacier 
.Ktion;  and  who  would  contend  that  these  deposits  from  float- 
wj;  l)odies  of  ice  belong  not  to  the  owner  of  the  soil,  but  to 
the  finder?  Their  origin  or  source  may  be  less  mysterious, 
luit  thev,  too.  arc  "telltale  messengers"  from  far  off  lands,  and 
luivc  value  for  historic  and  scientific  investigation. 

It  is  said  that  the  aerolite  is  without  adaptation  to  the  soil, 
and  onlv  vakiable  for  scientific  purposes.  Nothing  in  the  facts 
of  the  case  will  warrant  us  in  saying  that  it  was  not  as  well 
juhipted  for  use  by  the  owner  of  the  soil  as  any  stone,  or,  as 
Mppellant  is  pleased  to  denominate  it,  "ball  of  metallic  iron." 
That  it  may  be  of  greater  value  for  scientific  or  other  purposes 
mnv  be  .admitted,  but  that  fact  has  little  weight  in  determining 
wlio  should  be  its  owner.  We  can  not  say  that  the  owner  of 
the  soil  is  not  as  interested  in,  and  would  not  as  readily  contrib- 
ute to,  the  great  cause  of  scientific  advancement  as  the  tinder, 
hy  chance  or  otherwise,  of  these  silent  messengers.  This  aero- 
lite is  of  the  value  of  $101,  and  this  fact,  if  no  other,  would 
remove  it  from  uses  where  other  and  much  less  valuable  mate- 
rials would  answer  an  equally  good  purpose,  and  place  it  in  the 
sphere  of  its  greater  usefulness. 

The  rule  is  cited,  with  cases  for  its  support,  that  the  finder  of 
lost  articles,  even  where  they  are  found  on  the  property,  in  the 
luiilding,  or  with  the  personal  effects  of  third  persons,  is  the 
owner  thereof  against  all  the  world  except  the  true  owner.  The 
correctness  of  the  rule  may  be  conceded,  but  its  application  to 
the  case  at  bar  is  very  doubtful.  The  subject  of  this  contro- 
versy was  never  lost  or  abandoned.  Whence  it  came  is  not 
known,  but,  under  the  natural  law  of  its  government,  it  became 
a  part  of  this  earth,  and,  we  think,  should  be  treated  as  such. 
It  is  said  by  appellant  that  this  case  is  unique ;  that  no  exact 
precedent  can  be  found;  and  that  the  conclusion  must  be  based 
largely  upon  new  considerations.  No  similar  question  has,  to 
our  knowledge,  been  determined  in  a  court  of  last  resort.     In 


2S  THE    CHAUACTF.IUSTICS  OF    I'EUSONAL    rilOI'KKTV. 

the  American  and  En-lish  Encyclopedia  of  Law  (vol.  15.  p. 
ib;S)istliefollosvin<,Mau<iuage:      -An  aerolite  is  tlv    property 
of  the  owner  of  the  fee  upon  which  it  falls.   Hence  a  pedestrian 
on  the'ln-hwav,  who  is  first  to  .r.scover  such  a  stone,  is  not  the 
owner  of  it;   the  hi<;hway  being   a  mere  casement  for  travel.' 
It  cites  the  case  of  Maas   v.  Amana   Soc,  16  Alb.  Law  J.  76. 
and  13  Ir.  Law  T.  3S1,  each  of  which  periodicals  contams  an 
editorial  notice  of  such    a  case  having  been  decided  in  Illinois, 
but  no  reported  case  is   to  be  found.     Anderson's   Law   Dic- 
tionary states  the  same  rule  of  law,  with  the  same   references, 
under  the  subject  of  "Accretions."     In   20  Alb.  Law  J.  299, 
is  a  letter  to  the  editor  from  a  correspondent,  calling  attention 
to  a  cas.' d''te'"V,ned   in  France,  where  an   aerolite  found  by  a 
peasanl  . .a;  >-'t  to  be  the  property  of  the  "proprietor  of 

the  field,"  •      '  the  finder.   These  references  are  entitled, 

of  course,  to  slight,  if  any,  consideration;  the  information  as  to 
them  beii-  'o-  meagre  to  indicate  the  trend  of  legal  thought. 
Our  conchu-ious  .  -  a-  !ced  with   some   doubts  as   to  their 

correctness,  but  th.y  av.v-  i.^-  s^  much  from  the  application  ot 
known  rules  of  law  to  proper  facts  as  from  the  al)sence  of 
defined  rules  for  these  particular  case:  .  The  interest  manifested 
has  induced  us  to  give  the  case  careful  thought.  Our  conclu- 
sions seem  to  us  nearest  analogous  to  the  generally  accepted 
rules  of  law  bearing  on  kindred  questions,  and  to  subserve  the 
ends  of  substantial  justice.  The  question  we  have  discussed 
is  controlling  in  the  case,  and  we  need  not  consider  others. 

The  judgment  of  the  district  court  is  atfirmed. 

CoNSULT-Riley  v.  Boston  Water  Power  Co.,  11  Cush.  i;  Kier  v. 
Peterson,  41  Pa-  St.  357;  Tripp  v.  llasceig,  20  Mich.  254;  Cockrill  v. 
Downey,  4  Kan.  366;  Molt  v.  Palmer,  1  N.  Y.s64;  Jolinson  v.  Barber,  5 
Gilm.  425,  50  Am.  Dec.  416;  Jenkins  v.  McCurciy,  4S  Wis.  62S,  33  Am. 
Rep  841  •  Price  v.  Malott,  85  Ind.  266;  McLean  v.  Hardin,  3  Jones  (Lx.), 
204  69  Am.  Dec.  740;  Mam  v.  Kendall,  in  Mass.  297;  Beardsly  v.  Ontario 
Uk  31  Barb.  634;  Hart  v.  R.  Co.,  7  Mo.  (App.J  446;  Goodman  v.  R.  Co., 
45  Mo.  33;  Emaus  v.  TurnbuU,  2  Johns.  313,  3  Am.  Dec.  427. 


PIlOriiKTY. 


THE    CIIARACTEUISTICS  OF    PEUSON'AI,    IMtorEKTV, 


-9 


:  Law  (vol.  15.  p. 
ite  is  tlv  property 
[Icncc  a  pedestrian 

a  sionc,  is  not  tlie 
;ment  for  travel.'' 
f)  Alb.  Law  J.  76, 
adicals  contains  an 
decided  in  Illinois, 
lerson's  Law  Dic- 
e  same  references, 
1  Alb.  Law  J.  299. 
It,  callinj^  attention 
lerolite   found  by  a 

the  > 'proprietor  of 
■rences  are  entitled, 
ic  information  as  to 
d  of  legal   thought. 

doubts  as  to  their 
n  the  application  of 
om  the  absence  of 
i  interest  manifested 
ught.     Our  conclu- 

generally  accepted 
and  to  subserve  the 

we  have    discussed 
consider  others, 
ict  court  is  attirmed. 

).,  II  Cush.  i;  Kier  v. 
Mich.  254;  Cockrill  v, 
4;  Jolinson  V.  Haiber,  5 
y,  48  Wis.  62S,  33  Am. 
,  Hardin,  3  Jones  (Ex.), 
297;  Beardsly  v.  Ontario 
46;  Goodman  v.  R.  Co., 
im.  Dec.  427. 


<  7.    Test  of  real  as  distinguished  from  personal  prop- 
erty.   (2)    Duration  of  time  of  enjoyment. 

BREWSTER  v.  HILL. 

[i  N,  II.  350.] 
Supreme   Court  of  Sciv  Hampshire,  18 18. 

This  was  an  action  for  trespass  in  ejectment.  At  the  trial 
iiL-re  under  the  general  issue,  May  term,  iSiS,  it  appeared  in 
evidence  that  John  Whcelock,  Esq.,  was  the  owner  of  the 
demanded  premises  on  the  fifteenth  of  March,  A.  D.  1796; 
that  he  then  leased  them  to  one  O.  for  9S5  years  ;  that  ( ).  entered 
and  died,  beciueathing  all  his  "personal  estate  to"  A.  P.  and 
wife;  and  that  in  November,  1S07,  A.  P.  and  wife  conveyed 
tlieir  interest  to  the  plaintiff. 

A  verdict  was  returned  for  the  plaintiff  subject  to  the  opinion 
of  the  court  upon  the  above  evidence. 

Woodbury,  J.,  delivered  the  opinion  of  the  court.  In  this 
case  the  sole  question  is  whether  the  term  mentioned  in  the 
plaintiff's  writ  would  pass  under  a  devise  of  "personal  estate." 

The  boundaries  between  real  and  personal  estate  are,  in  cer- 
tain instances,  scarcely  distinguishable;  and  indeed  some  species 
of  property  exist  which  have  been  deemed  real  or  personal,  ac- 
cording to  the  character  of  the  claimants  and  the  purpose  for 
which  they  claim.  Vide  authorities  cited  post;  Mills  v.  Pierce, 
Rock,  Feb.,  1S19. 

But  we  are  not  aware  of  any  established  principles  or  prec- 
edents which  would  make  leases  for  years  anything  more  than 
"personal  estate."  The  law  in  relation  to  them  was  settled 
before  the  land  itself  could  be  conveyed.  Bac.  Leaf. ;  Co.  Lift. 
4:^6.  They  were  then  for  short  terms  and  with  an  exclusive 
view  to  aid  great  land  holders  in  the  cultivation  of  the  soil. 
Hence  the  lease  passed  t  the  lessee  no  interest  in  the  premises; 
but  was  a  mere  contract  for  a  breach  of  which  a  recovery  in 
damages  against  the  lessor  was  the  only  remedy.  Vaugh.  137, 
Hayes  v.  Bickerstaff. 


30  THE    C.AUACTERISTICS  OF    rKKSONAL    PUOPKUTY. 

As  the  custom  aUevca   a.ul  leases  for  longer  t-^^/'^^ 
comLn,  the  remedy  ot  the  lessee  was  by  statute  extradedn 
htsvas  enabled  to  protect  hims-lf  in  the  occupafon  of  the  land 

't  t.d;tl^iJ;.-s:^\.  .ere  chattel. ere  stn.  attached  t^^ 
the  term-whether  its  continuance  was  for  one  or  lor  a  hundred 
^r;.  Hac.    Leas.   Livery  of  sei.in  was  not  necessary  to  pa. 

he  interest  as  it  was  to  pass  real  estate.     L.tt.,   sec.   ,9.     Ihc 
e  s  e    m.Ul  not  sustain  a    real  action,    but    when    ousted  was 
,  ,        X    ..  Ibis  nlVuitiff  has  been  in  this  instance,  to  resort  t.. 
obl.ped.  as  l|"M'l  >'"l'"  ^,^^,,^^  ,  ,.,.^,,  ^^tion 

ti-psoass  ni  eiectn.ent.     3  m-  ^-  »yy*  , 

be  m    ntain  d  against  him  ;  because  he  was  not  the  owner  o 
^ndconld  plead   nontenure.        Booth.     His    nUeres    could 
1?.!,^!    th  >u"h  at  common  law  no   real  estate  could  pass  by 
lie    Lee..   B.r,    I    Hon.    Ab.  609.     It   has  always 
L:    hel     to    that  aft^  the  decease  of  the  lessee  the   tenn 
■  onced    to   his    executors    or   administrators  and  not  to    In 
iK-irs,^    r    Leon,    3»-     ^i^^-"'    ^^^^'"•'  '•    ^°^"'''''"'  '  ^' 

^^;ir:;:tii^:::;u:ta  lien  upon  the  real  estate  of  a  debtor 
.I:ttimeof,,d..entren..^,lea.sf.>^sh.^ 

,^.ed  ..t  .     e^.;.^^^^^^^^ 

:.  KJnnedv.  In  wills,  too,  as  in  the  V^<^^^^' ^^-^^^,}'Z 
always  pas'sed  under  the  expression  "goods  and  chattels  and 
hsle  instances  under  that  of  "goods"  alone.  Shep.  r.  97  - 
Cro  E  .  3S6  ;  13ordman  v.  Willis,  x  D.  &  E.  597  =  »-;  "^f  ^j 
Nor  tn;cessary  that  leases  should  be  acknowledged  and 
attested;   as  deeds  must  be  that  convey  "lands  and  tenements. 

^1;*;!:;  are  well  aware  of  a   common  impression  that  long 

terms  are  "to  all  imaginable  purposes  a  fee  snnplc  estate,      i, 

Zs    403;  that  a  power  "to  sell  land"  has  been   held   to  be 

dut  executed  by  leasing  it  for  999  ye- ;  CiUey  v.  Cayford, 

Hil  s    ^P.  1S06;  that  our  statute  of  February  10,  179^  (Sta  • 

9  Requires  all  leases  for  more  than  seven  years  to  be  record- 

d    and  that  according  to  Denn  v.  Barnard,  Cow.  597,  an  ad- 

^eise  possession  by  the  lessee  under  a  long  term,  m.ght  m  tune 

enable  him  to  claim  a  fee. 


*»«ai«(iv  **■  atWBje*"*'**'*''^'' 


PUOPKUTV. 

rcr  terms  became 
;ute  extf  .idetl,  and 
pation  of  the  land 

re  still  attached  to 
e  or  for  a  hundred 
t  necessary  to  pass 


tt.,   sec.   59. 


The 


when    ousted  was 
stance,  to  resort  to 
could  a  real   action 
i  not  the  owner  ot 
interest  could   he 
stale  could  pass  by 
oq.     It   has  always 
;he  lessee  the   term 
ors  and  not  to    his 
Lovelace,   Pet.    of 

;al  estate  of  a  debtor 
for  years  have  been 
Fleetwood's  Case. 
5  Atk.  739;  Bunder 
sent  case,  they  have 
i  and  chattels,"  and 
lone.  Shep.  T.  97; 
;.  597:  Bac.  Leg.  B. 
J  acknowledged  and 
inds  and  tenements." 

impression  that  long 
e  simple  estate;"  13 
has  been  held  to  be 
; ;  Cilley  V.  Cayford. 
ruary  10,  1791  (Stat. 
;n  years  to  be  record- 
■d.  Cow.  597,  an  ad- 
T  term,  might  in  time 


SI.ATKU    V.    SAMIM.I'.  o' 

( )u  principle,  however,  it  is  impossible  to  define  at  what 
number  of  years  a  lease  shall  become  real  estate.  Its  character 
c  ui  not  be  changed  bv  the  length  of  the  term.  Nor  does  our 
St  .lute,  or  the  decisions  last  cited,  appear  upon  esammation  to 
"cunllict  will,  the  idea  that  a  lease  for  any  number  of  years  is 
nut,  as  to  the    lessee's    heirs,   anything    more    than  -personal 

estate. 

Let  judgment  be  entered  on  the  verdict. 

CoNsui-T-Chap.nan  v.  Gray.  15  Mass.  437;  E'^  parte  Gay,,.;  Mass.  4.9; 
Bisbee  V.  Hall,  3  Ol^..,  405 ;  Prigsley  v.  Aikin,  U  N.  Y.  478  ;  nillingha.n 
V    lenkins,  7  S.  .V:  M.  479;  Lorii.g  v.  MeLcndy,  11  Ohio,  355- 


^  8.    Property  changing  character. 

SLATER  V.  SAMPLE. 

[71   111.  43".] 
Supreme  Court  of  Illinois,  1874. 

Mr.  Chief  Justice  Bueese  delivered  the  opinion  of  the  court. 

The  facts  in  this  case  are  substantially  these :   One  Singleton 
purchased  a  lot  in  the  town  of  Waverly,  in  the  county  of  Mor- 
gan   of  appellant,  on  time,  at  one  hundred  and  fifty  dollars,  the 
a.nced  price.     Singleton  took  possession  of  the  lot  and  erected 
on  it  a  small  frame  house  on  pillars,   as  a  residence.     In  the 
■ihscnce  of  the  vendor,  who  had  contributed  some  money  toward 
the  plastering  and  carpenter  work  of  the  house.  Singleton  sold 
the  house  to  one  Ranz,  about  the  tim.e  the  purchase  money  be- 
came due,  and  Ranz  sold  it  to  one  Dennis.     Dennis  and  Ranz 
n.noved  the  house  to  a  lot  belonging  to  Dennis,  placing  it  on 
Inick  pillars,  sunk  in  the  ground,  with  the  intention  of  makmg  a 
residence  of  it  for  the  purpose  of  sale.     A  purchaser  was  found 
in  appellee.  Sample,  who  paid  them  six  hundred  dollars  and 
over  for  the  house  and  lot,  and,  to  fit  it  for  a  dwelling,  budt  an 
addition  to  it  for   a   kitchen,    attached  cj  the  main  buildmg  by 
resting  the  frame  on  pieces  o£  scantling,  2x4,  nailed  to  the  cor- 
ner posts  of  the  main  building. 


c— 


3J  TUK    CIIAKACTF.RISTICS  OK    I'EUSONAI.    I'llOPEKTV. 

The  ptircliase  inonov  Iroin  Sin-lctuii  for  the  h.t  was  not.  then 
(U.e,  nor  lias  it  ever  been  paid  or  demanded,  and  no   leed  i.iade 

by  appellant. 

On  appellant's  retnrn  home,  fnulin-r  the  lot  he  had  contractc.l 
to  sell  Sin-leton  vaeant,  the  house  havin-  been  removed,  and 
tru-in.'  it  to  the  possession  of  appellee,  he  demanded  a  return  ol 
it  chdming  the  riRht  of  possession,  which  bein-  refused,  appel- 
lant sued  out  a  writ  of  replevin  for  the  house  which  the  sher.tl 
executed  bv  removinR  the  brick  pillars  on  which  the  house  ha.l 
been  placed  by  Ran/,  and  Dennis,  and  detachincr  the  "addition" 
erected  by  appellee,  and  removed  it  from  appellee's  lot;  but  to 
what  place  it  was  taken  by  the  sheriff,  or  what  became  of  it,  the 
record  does  not  disclose. 

The  question  in  the  case  is:   Was  this  house,  when  moved  by 
Dennis  and  Ranz  to  Dennis's  lot,  and  there  placed  on  brick  pil- 
lars sunk  in  the  -round,   and  to  which  appellee,   after  his  pur- 
chase   built  the    addition   fixed   to  the  building  by  nails,   and 
occupied  it  as  his  dwelling,   personal   or  real  property?     If  the 
former,  the  action  of  replevin  would  lie  on  the  authority  of  O- 
den  V    Stock.  34  HI.  522.    That  case  does  m.t  show  the  bu.Uhn- 
WIS  fixed  to  and  had"  become   a  part  of  the  soil  of  another  lot 
after  it  was  re.noved,   as   in   this  case.     Tt  was  built  on  blocks 
resting  on  planks,   but   how   it  was  fastened  to   the  sod,  after 
removal,  is  not  disclosed.     In  that  case  also  the  contract  of  sale 
provided  that  if  the  vendee  should  make  default  in  any  of  the 
„.,vments,    the  vendor  should   have   the  right    to    consider   the 
agreement  terminated,  and  to  treat  the  purchaser,  his  reprcsen- 
latives    or  assigns,  as  tenants  at  will  at  a  specified  rent.  Nothmg 
c'f  this  appears  in  this  case,  nor  is  it  shown  that  any  written  con- 
tract existed  for  the  sale  and  conveyance  of  this  lot  by  appellant 
to'  Singleton,  nor  that  it  was  any  part  of  the  bargain  that  Single- 
ton was  to  Innld  upon  the  lot.     The  proof  is,  appellant  sold  the 
lot  to  him  for  one  hundred  and  fifty  dollars  on  one  year's  tmie 
at  ten  per  cent.     No  note  taken,    no   contract  providmg  for  a 
deed  executed,    no  stipulation  as  to  forfeiture  on  nonpayment; 
■uul  from  aught  that  does  appear,  Singleton  can  yet  perform  his 
contract  and  demand  a  deed.     He  may  be  able  to  satisfy  a  court 
of  equity  he  has  equitable  rights,  and  yet  may  obtain  a  title  to 
the  lot. 


fi.J 


I'UOrEKTV, 


SI.ATKll    V.    SAMPLE. 


33 


ic  lot  was  not  then 
and  no  -lecd  i.iadi 

t  he  bad  contracted 
)een  removed,  and 
manded  a  return  of 
injjj  refused,  appe!- 
;c  which  the  sheriff 
liich  tlie  house  liad 
iin<;  tlie  "addition" 
ipellee's  h)t;  but  to 
at  became  of  it,  the 

ise,  when  moved  by 
])hiced  on  brick  pil- 
eliee,  after  liis  pur- 
din<;;  by   nails,   and 

1  property?  If  the 
the  autliority  of  Ojjj- 
i)t  show  the  l)uildiny 

2  soil  of  another  lot 
was  built  on  blocks 
h1  to  the  soil,  after 
)  the  contract  of  sale 
efault  in  any  of  the 
:rht  to  consider  the 
chaser,  his  rcprcscn- 
L-citled  rent.  Nothing 
that  any  written  con- 

this  lot  by  appellant 
:  bargain  that  Single- 
is,  appellant  sold  the 
rs  on  one  year's  time 
:ract  providing  for  a 
ure  on  nonpayment; 
n  can  yet  perform  his 
able  to  satisfy  a  court 

may  obtain  a  title  to 


Ihit  \vc  arc  clear  in  the  opinion  tliat,  if  tiii«  house,  luing 
placed  on  pdlars.  on  appellant's  lot,  for  permanency,  for  a  resi- 
dence, not  to  serve  a  temporary  pin'pose.  it  l>ecame  a  part  of  the 
naltv,  and  its  removal  to  another  lot,  and  there  tlNe<l  to  the  soil 
lor  permanency,  it  was  on  that  lot  a  part  of  the  lot.  and  could 
iKit  be  taken  from  it  by  a  writ  of  replevin.  For  the  trespass  in 
removing  the  structure  from  appellant's  lot  an  action  of  trespass 
miglit  lie;  replevin  wotdd  not,  for  there  the  building  was  a  part 
of  tile  realtv.  There  can  be  no  tjuestion  if  Sing  ton  had  the 
title  to  the  lot,  he  could  have  severed  the  house  from  it  and 
sold  it  as  personal  property ;  but  when  the  same  licuise  was 
removed  and  became  a  part  of  another  lot — a  [lartof  the  realty — 
it  then  ceased  to  be  personalty,  and  for  a  damage  to  an  action 
of  replevin  can  not  be  maintained.  This  is  much  like  tiie  case 
of  Dooley  v.  Crist,  25  111.  551,  when  it  was  said  to  be  a  fuiida- 
iiRMilal  rule  that  all  the  additions  or  improvements  placed  upon 
land,  of  a  permanent  nature,  adapted  to  its  use  and  belter  enjoy- 
iiunt,  became  a  part  of  the  land.  The  exception  is  in  trade 
tixtures.  and  such  iiections  as  a  tenant  may  make  for  his  own 
convenience  with  no  regard  to  permanency.  I5y  express  agree- 
ment of  parties,  even  structures  designed  to  be  i^ermanent, 
placed  by  a  tenant  upon  land,  or  by  a  vendee,  m.-iy  lie  removed 
as  personal  property;  or,  if  the  owner  of  the  soil,  by  deed,  sells 
a  tenement  erected  upon  the  land,  it  would  become  dissevered 
and  be  converted  from  real  to  personal  property.  But,  as  a 
"general  rule,  when  a  building  is  erected  on  the  land,  the  pre- 
sumption is,  it  is  a  part  of  the  real  estate,  and  not  personalty, 
and  to  take  it  out  of  the  operation  of  this  rule  a  state  of  facts 
must  be  shovvn  which  rebuts  the  presumption,  ^Vnd  the  courts 
further  say  even  when  a  stranger  constructs  a  building  upon  the 
laud  of  another,  without  his  consent,  »t  becomes  a  part  of  the 
land,  and  he  would  become  a  trespasser  by  removing  it. 

Testing  this  case  by  what  is  there  said,  if  it  was  .Singleton's 
intention  when  he  built  the  house  on  the  lot  to  render  the 
imjirovement  permanent  when  erected,  there  can  be  no  cpics- 
tion  it  became  a  part  of  the  freehold,  and  no  subsequent  ch.ange 
of  intention  changed  its  character  to  that  of  personal  property. 
N(jt  being  the  owner  of  the  lot,  he  could  not  sever  the  building 
from  it,  if  the  intention  at  the  time  of  erecting  it  was  to  render 
3 


H'-y'^-'-i^^-^'i^!?^'-- 


■an 


34  THE   CHARACTKRISriCS    OF  PF.nsovAr.    PnOrKHTY. 

it  a  part  of  the  realty,  and  this  fact  is  found  by  the  court  try'.nc: 

''Vhrbiing  so,  the  lot   bcin,  the   property  of    appellant    the 
,  J      ,  be  '  nn.  a  part  of  it,  not  as  a  chattel    but    as  part  an 
eel  of  the  realty    and  anyone  meddling  with  a   to  d.sturb  ., 
would  be  a  trespa'sser  on  the  realty.     So  when  by  means  ot 
::  pass  the  buihling  was  placed  on  the  Dennis    ot    upo"   >- 
pluL  sunk  in  the  ground,  It  became  a  part  o    /'-^   "  '  ^^      ^^ 
Incorporated  into  the  realty  and  was  not  the  subject  of  a  wr.t  o£ 
replevin.     In  its  transit  from  one  lot  to   the  other  it  m.ght  be 
".glided   as  personalty,  but  when  it  became   attached   to   the 
soil,  it  lost  that  character. 

As  to  the  advances  made  b'y  appellant  for  plastering  and  car- 
pentlr"  work,  it  appears  a  large  part  of  that  has  been  arrange 
bv  d  e  services  of  Mrs.  Singleton.     But  there  >s  no  proof  the  c 
'^«  were  made  at    Singleton's  re,uest,  and  .t    t.ey  w. 
they  do  not  change  the  nature  of  the  property.     In  e  pntv ,  per 
haps,  appellant  might  establish  a  lien  for  the  amount 

Lli  these  views,  we  must  affir.  the  ^^  ^^^^^^^^ 

33  A,n.  Rep.  ^4- Golden  v.  C.j^U^STU -B.^;;j;;^ 
V.W..11S.4I  Pa.  St.  291,  80  Am.  Dec    M^,  J  ^e      oec.  770;  Lacustrine 
Me.  ..29;  Branch  v.  Morrison,  5  Jones,  16,  69  Am.  Uec.  ,7   , 
Co.  V.  Lake  Guauv  Co.,  82  N.  Y.  476. 


^ 


^*«,,,g»^*»i-iiiUA-tJ«rf^'«*=*«»**- 


»owE««***^'' 


.  rnornnrY, 


by  the  court  try'inc: 

tv  of  nppellant,  the 
U'l,  but  as  part  aiul 
Aith  it,  to  disturb  it, 
vhcn  by  means  of  ,i 
niiis  lot,  upon  brick 
rt  of  that  lot,  it  was 
2  8ui>jcct  of  a  writ  <it 
t;  other  it  might  he 
me   attaclied   to   tl^e 

)r  phistcvlng  and  car- 
At  has  been  arranged 
icrc  is  no  proof  thc'-e 
^st,  and  if  they  were 
-rty.  In  equity,  per- 
the  amount, 
e  judgment. 
Judgment  affirmed. 

-,  McCurJy,  4^  Wis.  62S, 
5  N.W.Rep.  12;  Forsvth 
eeniim  v.  Underwood,  6d 
.m.  Dec.  770;  Lacustrine 


CHAPTER  II. 

THE  LIMITATIONS  TO  THE  OWNERSHIP  OF 
PERSONAL  PROPER lY. 


§  9.    Limitations  to  absolute  ownership— Must  not  be 
used  so  as  to  injure  others. 

MORGAN  V.  COX. 

[22  Mo.  273.] 

Supreme  Court  of  Missouri,  i8s6. 

Action  to  recover,  in  the  form  of  damages,  the  value  of 
plaintiff's  slave,  alleged  to  have  been  killed  by  the  accidental 
discharge  of  a  gun  in  the  hands  of  the  defendant,  a  minor,  by 
reason  of  his  negligence.  The  defendant  answered  by  his 
guard'  ^  ad  litem,  denying  the  negligence.  The  facts  suffi- 
ticn  pear  in  the  opinion  of  the  court.     There  was  a  ver- 

dict ..dgment  for  the  plaintiff  below,    and   the  defendant 

brings  the  case  here  by  writ  of  error. 

Leonard,  J. — We  see  no  grounds  for  disturbing  this  judg- 
ment. The  suit  was  for  the  negligent  shooting  of  the  plaintiff's 
slave,  and  the  only  question  was  as  to  the  fact  of  negligence. 
The  defendant,  it  seems,  had  been  out  with  his  gun,  and  was 
asked  by  the  plaintiff  to  aid  him  and  his  servant  in  driving  an 
unruly  cow  across  the  Osage  river;  and  while  doing  so  he 
punched  the  cow  with  his  loaded  g*m,  and,  in  .replacing  it 
.-icross  his  horse,  the  hammer  struck  the  saddle,  as  he  supposed, 
and  caused  it  to  fire,  by  which  the  plaintiff's  servant  was  shot 
ami  killed. 

The  court  directed  the  jury  that  if  the  killing,  although  unin- 
tentional, was  occasioned  by  the  negligence  of  the  defendant, 
he  was  liable  ;  and  also  instructed,  at  the  instance  of  the  defend- 
ant, that  if  the  gun  were  discharged  while  the  defendant  was 
replacing  it  across  his  horse,  he  was  not  liable,  unless  the  firing 

(35) 


^' J 


-c*Ai«es&,T""^*s^A^-  -^'*^J«  iTi.-;-.  ■' 


36       I.IMITAIIONS  TC.  OWNKKSl.Il'  OK     PKHSONAI-  I'UOPKUTY. 

Nvas  occasioned  by  bis  nc-li-CMce  in  replacing;  it;  but  refus.! 
to  tell  the  jurv  that  if  it  were  thus  dischar-cd,  and  not  while  ^ 
was  bein-  used  in  punching  the  cow,  the  fact  of  its  hav.n- bee  u 
thus  used  did  not  reiider  the  defendant  liable. 

We  think  the    jury  was  so  instructed,   as  to  the  law  of  the 
case    as  to  leave  the  defendant    without    any    ground  ot   com- 
plaint;   indeed,  the  matter  was  submitted  to  the  jury  (lu.tc  as 
favorably  for  him  as  the  law  would  permit.     The  plamt.lf  put 
his  ri-dit  of  recoverv  upon  the   i,M-ound   of   negligence,    and  the 
i„,v  were  told  that  if  it  appeared  from   the  evidence    that  the 
.lefendant  had  been  guilty  of  it,  they  must  rtnd  for  the  plamtift ; 
and,  ordinarily,  this  would  seem  to  be  a  sullkient  direction  tint 
thev  could  not    so   find  unless  the  proof  satisfied  them  of  the 
required  fact.      Here,  however,  the  court,  ut  the  instance  of  the 
defendant,  also  directed  that  if  the  accident  occurred  wnle  the 
.rnn  was  being  replaced  across  the  horse,  they  must  hnd  for  the 
Tlefendant,  unless  the  act  was  done  negligently,    and    without 
t  .king  proper  care.     The  refused  instruction,   as  to  the  effect 
of  the  previous  act  of  punching  the  cow  upon  the  subseciuent 
thin-,  was  quite  unnecessary  for  the  defendant,  except  to  lead 
the  iury  astray;   for  the  court  had  already  said  that  it  the  event 
occurred  while  the  gun  was  being  replaced,  the  defendant  was 
not  liable,  unless  he  were  guilty  of  negligence  in  replacing  it- 
which  was  going  to  the  very  limit  of  the  law,  in  that  particular, 

for  the  defendant.  ,        • ,  c 

We  are  also  satisfied  that  there  was  quite  enough  evidence  ot 
neglicrence  to  submit  the  case  to  the  jury;     and    if    we    were 
called  upon  to  express  an  opinion  upon  it,  we   should  not  hesi- 
tate to  say  that  it  well  warranted  the  verdict.     If  a  person  be 
gnilty  of  an  unlawful  .ct,  he  is  responsible  for  all  the  damage 
that  is  thereby  occasioned  to  others.     But  here,  it  is  true,  the 
defendant  had  an  undoubted  right  to  carry  his  loaded  gun  about 
with  him;   and,  therefore,  that  alone  did  not  render  him  respon- 
sible for  the  private  damage  that  resulted  from  it  to  the  plaint.tf. 
or  answerable  criminally  for  the  destruction  of  human  life  that 
was  thereby  occasioned.     Upon  legal  principles  it  must  be,  that 
to  the  extent  to  which  one  person  has  a  right  to  act,  others,  ot 
course,  are  bound  to  suffer;   and  any  damage  that  may  accrue- 
to  them,  while  he  is  thus  exercising  his  rights,   affords  no  valid 
ground  ot  complaint.     The  loss  occasioned,   in  such  cases,  is 


^■u 


^»iir- 


tfHIl 


INAI.  I'HOPEUTY. 


MORGAN    V.    COX. 


37 


cing  it;  but  refused 

ed,  and  not  while  it 

act  of  its  having  been 

)le. 

as  to  the  law  of  tit 

iny    ground  of   coni- 

to  the  jury  ([uite  a^ 
t.      The   plaintiff  put 

negligence,  and  tin' 
he  evidence  that  tin 
t  find  tortile  plaintiff; 
ufficientd'rection  thai 

satisfied  them  of  the 

.it  the  instance  of  the 
nt  occurred  while  tli.' 
they  must  find  for  the 
igently,  and  without 
:tion,  as  to  the  effect 
■  upon  the  subseiiuent 
indant,  except  to  lead 
y  said  that  it  the  event 
ed,  the  defendant  was 
gence  in  replacing  it — 
law,  in  that  particular, 

lite  enough  evidence  of 
iry ;     and    if    we    were 
it,  we   should  not  hesi- 
rdict.     If  a  person  be 
)]e  for  all  the  damaj^^e 
Lit  here,  it  is  true,  the 
ry  his  loaded  gun  about 
1  not  render  him  respon- 
;1  from  it  to  the  plaintiff. 
:tion  of  human  life  that 
rinciples  it  must  be,  that 
right  to  act,  others,  of 
image  that  may  accrue 
rights,   affords  no  valid 
oned,   in  such  cases,  is 


.If'vnum  absque  injuria.     Every  person,  however,  who  is  per- 

orming  an  act,  is  bound  to  take  some  care  in  what  he  is  d(jing. 

He  can  not  exercise  his  own  indisputal)le  rights  without  observ- 

u  jiiuper  i^recaution  not  tcj  cause  others  more   damage  than 

111  he  deenieil  fairly  incident  to  such  exercise.      Sic  ntcrc  l/io, 

:  ,ilicuuin   lion   lacdns.     And,    therefore,    although   tlie  mere 

,  xcrci.se  of  a  right  is  not  a  wrong,   in  any  case,   any  negligence 

ill  tlie  exercise  of  it  that  causes  a  loss    to    another    is   an    injury, 

•  iitrrring  upon  him  a  riglit  of  action.      It  is  correctly  said  tliat, 

_i  ueiallv.  bvtwi!en  ])ersons  standing  in  no   particular  relation  to 

.  leh  other,  that  alone  is  reasonable  care  u  liich.  in  the  judgment 

I  men  in  general,  is  proportionate  to  tiie  probability  of  injin^y 

t  '  iilhers ;   and,  consequently,  he   wlio  does  wliat  is   more  tiian 

•  iiliiiariiy  dangeron.^  is  bound   to   use   more  than  ordinary  care. 

riie  defendant  here  had  a  dangerous  instrument  in  his  hands, 
.111(1  it  was  his  duty   to   take  proport'onate   care    in   handling   it. 

T'le  punching  of  the  cow  was  ;*  .  .^less  use  of  it,  surrounded 
a^  lie  was  by  others;    anvi   although    the    accident    di<l    not    then 

•  eair,  it  was  no  doubt  occasioned  by  accidentally  striking  the 
hammer  against  the  saddle,  upon  returning  the  gun  to  the  hori- 
zontal position  in  which  the  defendant  had  carried  it,  witliont 
elevating  the  muzzle.  The  accident,  in  all  probability,  would 
lint  have  occurred  had  the  defendant  taken  that  care  of  the  gun 
tiiat  it  was  his  duty  to  have  taken  of  it  while  it  was  loaded,  and 
lie  himself  was  surrounded  by  those  whom  it  might  injure  if  it 
aecidentally  fired. 

We  have  thus  stated  how  far  a  party  ought  to  be  held  rcspon- 
sihle  upon  the  principles  of  law  applicable  generally  to  damage 
occasioned  by  negligence,  which  seems  to  be  the  ground  upon 
which  the  plaintiff  here  placed  his  right  of  recovery.  It  must, 
hiiwever,  be  admitted  that  our  law  holds 'a  person  to  a  much 
>tiieter  responsibility  when  the  act  amounts  to  a  trespass  vi  ct 
armis,  either  to  property  or  person.  Under  the  old  system  of 
actions,  it  was  no  defense,  in  such  cases,  that  the  act  occurred 
ly  misadventure,  and  without  the  wrongdoer's  intending  it; 
I'ut  the  defendant  must  have  shown  such  circumstances  as  would 
make  it  appear  to  the  court  that  the  injury  done  to  the  plaintiff 
wa--  inevitable^  and  the  defendant  was  not  chargeable  with  any 
iieuligence;  for  no  man  should  be  excused  of  a  trespass  unless 
it  niav  be  adjudged   utterly  zvithout  his   fault.      This   was   so 


a 


3S       LIMITATIONS  TO    OWNERSHIP  OF  PERSONAL  PROPERTY. 

determined  in  au  old  case  (Weaver  v.  Ward,  Hob  ;34).  -^-,' 
the  action  was  against  a  soldier  who  had  accKlentally  .hot  Is 
comrade  while  exercising;  and  in  Underwood  v.  Howson  ht.a 
co6,'  the  defendant  was  uncocking  his  gnn.  when  it  went  otf  and 
accidentally  wonnded  a  bystander,  and  the  defendan  was 
hatl  aiKl  holden  liable  in  trespass.  And  in  Cole  v.  Fisher, 
I,  Mass.  137,  it  is  said  that  this  decision  has  never  been  ques- 

*'The  facts  of  the  present  case  would,  under  the  former  system 
of  procedure,  have   supported    an   action  of   trespass    and  can 
not,  we  think,  be  distinguished  from  the  cases  c.  ed        n  one 
of  them,  the  party,  in  uncocking  his  gun,  accidentally  d.schage. 
it  and  bounded  a  bystander.     Here  the  defendant  accidentally 
ruck  the  hammer  of  his  gun  against  his  saddle    and  the  same 
result  ensued.      In   both    cases    it   was  upon  the  de  endants  to 
show  that  it  happened,  as  the  books  say,  by  inevitable  accident, 
.nd  without  the  least  fault;   and  the  change  that  has  been  intro- 
duced by  the  new  code  in  the  remedy,  has  not  changed  the  rules 
of  law  as  to  the   liability   of  the   parties.     It  is  enough,   hovv- 
ever.  that,  under  any  view  of  the  law,  the  defendant  was  clearly 
liable  for  this  damage.     In  the  case  cited  from  the  Massachu- 
setts Reports,  the  defendant,  after  washing  his  gun   went  to  h.s 
shop  doir,  which  was  about  a  rod  distant  from   the   highway, 
and  disch..rgcd  it  for  the  purpose  of  drying -t;   and  the  plaintiff 
horse,  being  at  the  time  harnessed  to  his  chaise    and  fastened 
by  hi;  bridle  to  the  fence  on  the  opposite  side  of  the  road    was 
frightened  and  ran  away,  and  broke  the  chaise,  and  the  defend- 
ant was  held  answerable  for  the  damage,  either  in  trespass  or 
case,  according  to  the  other  circumstances  of  the  transaction. 
In  Lynch  v.  Nurdin,  i  Q.  B.  29,  which  was  an  action  for  an 
injury  to  a  child,  committed  by  the   defendant   m   leaving  his 
horse  and  cart  standing  alone  in  a  street,  into  which  some  ch.l- 
dren  had  got,  and,  teasing  the   horse,   the   cart  went  over    h 
;,aintiff  and  broke  his  leg,  Denman,  C.  J.,  before  whom  tl 
case  was  tried,  held  the  defendant  liable,  and  said :      "If  a  man 
were  guilty  of  negligence  in  leaving   anything  dangerous   m  a 
•'Ti:;;n;ill  report  o£  this  case  is  as  follows:     "The   detendant  vvas  un- 
cock  ng  a  gun,  and  the  plaintiff  was  standing  to  see  it;  -^••^;'- "A  J "f 
"oiulaed  hini/and  at  the  time  it  was  held  that  the  plaint.ft  might  mam- 
tain  trespass." 


%*0 


I 


-StK: 


■isiP^i 


'ROl'ERTY. 

)h.  134),  where 
Mitally  .^liot  his 
,  Hewson,  Stra. 
1  it  WL'iit  off  and 
defeiulant  was 
Cole  V.  Fisher, 
ever  been  qucs- 

le  former  system 
cspass,   and  can 
i  cited.     In  one 
itally  discharged 
lant  accidentally 
e,   and  the  same 
he  defendants  to 
jvitable  accident, 
jt  has  been  intro- 
;hanged  the  rules 
is  enough,    how- 
ndant  was  clearly 
n  the  Massachu- 
5  gun,  went  to  his 
tm   the   highway, 
and  the  plaintiff's 
ise,   and  fastened 
I  of  the  road,  was 
2,  and  the  defend- 
ler  in  trespass  or 
f  the  transaction. 

an  action  for  an 
nt    in    leaving   his 

which  some  chil- 
irt  went  over  the 
before  whom  the 
1  said:  "If  a  man 
g  dangerous   in  a 

>  detendant  was  un- 
ee  it;  i'  ».-"'-  oH  an  J 
plaintift  might  main- 


EAUL   V.    VAN    ALSTIXE.  o9 

,„cct,  and  an  injury  arose,  though   partly  by  the    conduct  of 
other  parties,  the  sufferer  unquestionably  had  a  right  to  recover. 
It  I  gamekeeper,  returning   home  from  his  duty,  were  to  leave 
his  loaded  gun  in  a  playground,  and   one   of  the  boys  should 
the  it  off  and  injure  another,  it  could  not  be  doubted  but  that 
the  gamekeeper    must  answer  in  damages  to  the  injured  party." 
I  recollect  mvself  a  case  tha.  occurred,  where  a  person  in  riding 
,hvou"h  the  streets  of  one  of  our  villages  with  his  loaded  rifle 
l.cfore  him.  King  horizontally  across  his  saddle,  it  accidentally 
tired  and  wounded   a   person   sitting   in  his  own  door,  and  no 
,l„ul.t  seemed  to  be  entertained  of  the  responsibility  of  the  party 
for  the  damage  that  resulted. 
Tlie  judgment  is  afVirmed. 

CoNsvi  T-CaEtle  v.  Durvea,  32  Barb.  480,  2  Keyes,  4S0;  Cole  v.  Fisher, 
H  Mass.  297:  Bullock  v.  Babcock,  3  Wend.  371;  Chatague  v.  Bergeron, 
.,,  I  ■,  \nn  690;  Cbiles  v.  Dr.ake,  2  Mete.  146;  Thomas  v.  Wincbester, 
,',N  Y  397;  Vosburghv.  Mock,  i  Cush.  45,3;  Po^^^s  v.  Harlow,  53 
Mich.  ",07.  SI  Am.  Rep.  4;  Harriman  v.  R.  Co.,  45  Ohio  St.  11;  Jenne 
V.  Sutton,  43  N'-  b  (L-)  ^57,  39  Am.  Rep.  578;  Moebus  v  Becker,  46  N. 
1.  (L.)  41;  Lunby  v.  Hatner,  1  Strobh.  iS.s;  Bennett  v.  Lovell,  12  R.  I. 
idO,  34  Am.  Rep.  628. 


§  10.    Same-Injuries  by  wild  animals  and  liabUity  of 
owner. 

EARL  V.  VAN  ALSTINE. 

[8  Barb.  630.] 
Stipreme  Court  of  Nezv  Tork,  iSjO. 

This  action  was  commenced  in  a  justi-ce's  court.  The  com- 
phiint  alleged  that  the  defendant  was  the  owner  of  fifteen  hives 
of  bees,  which  he  wrongfully  kept  in  his  yard,  adjoining  the 
lMil)lic  highway;  and  that  the  plaintiff's  horses,  while  travclmg 
along  the'highway  and  passing  the  place  where  the  bees  were 
kept,  were  attacked  and  stung  so  severely  that  one  of  them  died 
and  the  other  was  greatly  injured,  etc.  The  answer  denied  the 
.harge  contained  in  the  complaint.  Upon  the  trial,  the  keeping 
01  tiie  bees  as  alleged,  and  the  injury  to  the  horses,  were  proved, 
;,:„1    the    plaintiff   recovered   judgment  for  $70.25   and  costs. 


15: 


4o     LnniAUVN.s  to  owNERsmr  ov  i'eusonal  propf-RTY. 

Upon  appeal  to  the  county  court  of  Wayne  county,  this  judg- 
ment was  reversed ;  and  the  cause  was  brou-ht  to  this  jourt  by 
appeal  from  the  judgment  of  tlie  county  court. 

Sei.den,  T- This  case   presents   two   questions:      l.  Is  any 

or.e  who  keeps  bce^  liable,  at  all  events,  for  the  injuries  they 
may  do?  2.  I'Hd  the  defendant  keep  tliese  bees  in  an  improper 
mamier  or  place,  so  as  to  render  him  liable  on  that  account? 

It  is   insisted   by    the    plaintiff    that   wliile    the    proprietor   of 
animals  of  a  tame  or  domestic  nature  {^domitae  nat/imc)  is  liable 
for  injuries  done  by  tliem  (aside  from  trespasses  upon  the  soil) 
only  after  notice   of  some  vicious   habit  or  propensity  of  such 
animal,  that  one  who  keeps  animals /<v<i'c  naturae  is  responsible 
at  all  events  for   any   injuries   they  may  do ;     and  that  as  bees 
belonj,-  to  the  latter'class,  it  follows  of  course  that  the  defendant 
is  liable.     In  order  to  determine  this  (luestion,   upon  which  no 
dirJct  or  controlling  authority  exists,    that   I   have  been  able  to 
fmd,  it  becomes   necessary    to    look    into    tiic   principles  upon 
which  one  who   owns  or  keeps  animals  is  held  liable  for  their 
vicious  acts.     It  will  be  found,  on  examination  of  the  author- 
ities upon  the  subject,  that  this  classification  of  animals  by  the 
common  law  into  animals  ferae  naturae  and  domitae  naturae 
has  reference  mainly,  if  not  exclusively,  to  the  rights  of  property 
which  may  be  acciuired  in  them;   those  of  the  latter  class  being 
the  subjects  of  absolute   and  permanent   owner>.hip,    while   in 
rcnu-d    to   the   former  only  a  qualified  property  can  exist;    and 
the  distinction  is  based  upon   the   extent  to  which   ihey  can  be 
domesticated  or  brought  under  the  control  and  dominion  of  man, 
and  not  at  all  upon  the  ferocity  of    their   disposition   or  their 
proneness  to  mischief.     For  instance,  the  dog.  some  species  of 
which  are  extremely  savage  and  ferocious,  is  uniformly  classed 
among  aWmv^U  d<wiitae  naturae,  while  the  hare,  the  rabbit,  and 
the  dove    are    termed  ferae    naturae,  although  comparatively 
harmless.     It  would  not  be  rational  to  suppose  that  a  classifica- 
tion adopted  with  exclusive  reference  to  one  quality  of  animals 
could  be  safelv  used  to  define  and  regulate  responsibilities  grow- 
ing out  of  other  and  different  qualities;   nor  would  it  accord 
with  that  just  analysis    and  logical    accuracy  which  distinguish 
the  common  law,  that  it  should  be  resorted  to  for  that  purpose. 
And  although  some   dicta  may  be   found  in  the  books  which 


'^-'X«lrtoMK>: 


PROPF-RTY, 


EARL    V.    VAN    AI.STINE. 


41 


lunty,  tliis  judj;- 
:  to  this  jourt  by 


ons  :      I.  Is  any 
the  injuries  they 
;s  in  an  improper 
that  account? 
lu    proprietor   of 
at/irac')  is  liable 
es  upon  the  soil) 
opensity  of  such 
rac  is  responsible 
and   that  as  bee.-; 
hat  the  defendant 
,  upon  which  no 
ia\e   I'ccn  able  to 

principles  upon 
Id  liable  for  their 
in  of  the  author- 
f  animals  by   the 

Joniifac  i/atiirac 
rights  of  property 

latter  class  bein<,' 
nership,  while  in 
ty  can  exist ;  and 
vhich  ihey  can  be 
dominion  of  man, 
sposition  or  their 
i>-,  some  species  of 
uniformly  classed 
ire,  the  rabbit,  and 
igh  comparatively 
se  that  a  classifica- 
quality  of  animals 
ponsibilities  grow- 
r  would  it  accord 

which  distinguisli 
0  for  that  purpose. 
in  the  books  which 


mi'^ht  seem  to  countenance  the  idea,  the  decided  cases  do  not 
kail  to  any  such  conclusion. 

(!:  is  unnecessary  to  enter  into  any  examination  of  the  cases 
which  estalilisli  one  branch  of  the  proposition  contended  for,  to 
uit,  that  in  order  to  make  the  owner  of  domestic  animals  liable 
ior  any  violent  injury  done  by  them,  unless  connected  with   a 
iropass  upon  land,   it  must    be    averred    and  proved  that  the 
defendant  had  notice  or  knowledge  of  the  mischievous  nature 
of  tiie  animal.     This,  as  a  general  rule,  is  settled  by  a  series  of 
decisions    which    have  been  entirely  uniform  from  tlie  earliest 
days  to  the  present  time.      But  although  in  many  of  these  cases, 
most  of  which   are  cases   of   injuries    done    by  dogs,  the  words 
domitac  7icitiirac,  or  equivalent  words,  are  used  to  describe  the 
animals,  for  the  mischief  done  by  wliich  the  owners  would  not 
be  liable  without  notice,  yet  it  i^  not  alone  because  they  Ijclong 
tu  that  class  that  the  exemption  arises,  but  because  animals  of 
that  class  are  usually  of   a   harmless   disposition.     I  apprehend 
that  if  a  person  chooses  to  kf;ep  a  domestic  animal,   as  a  dog, 
which  is  naturally  savage  and  dangerous,  he  does  so  at  his  peril, 
and  tliat  he  would  be  liable   for  any  injury  done  by  such  dog, 
without  evidence  that  he  had  ever  done  mischief  before.     This 
position  is  not  without  authority  to  support  it,  although  it  does 
not  rest  upon  any  adjudged  case.      In   Judge   v.    Cox,    i  Stark. 
285,  Abbott,  J.,  suggests  the  question,   but  expressly  reserves 
his  opinion  upon  it  as  unnecessary  to  the  decision  of  that  case. 
But  in  Hartley  v.  Harriman,  i   IJarn.   &  Aid.  620,   which  was 
an  action  for  an  injury  done  to  sheep  by  dogs,  the  declaration 
c(jntained  a  special  averment  that  the  dogs  were  accustomed  to 
worry  and  bite  sheep ;   and   the   court  held  that  this  averment 
was  not  supported  by  proof  that  the  dogs  were  of  a  ferocious 
and     mischievous    disposition.     But    Lord    Ellenborough    and 
Mr.  Justice  Bayley  both  said  that  it  would  have  been  suthcient 
to  allege  generally  that  the  dogs  were  of  a  ferocious  nature,  and 
unsafe  to  be  left  at  large,  and  that  evidence  of  that  fact  would 
support  the  action.     These  dicta  are  so  obviously  in  accordance 
with  common  sense  and  reason,  that  they  will  undoubtedly  be 
sustained  whenever  the  question  shall  arise.      It  is  true  that  in 
a  case  of  mjurics  done  to  sheep,   our   statute  makes  the  owner 
liable  without  notice,   provided   the   sheep   are  killed,   but  the 
principle  would  apply  to  any  other  mjnry. 


f  :w.  - 


1^ 


43       LIMITATIONS  TO  OWXEUSHIP  OF    PERSONAL  rUOPEUTY. 

But  While,  as  I -have  said,  the    cases  which   ^^f^^J^^^^ 
snonsibilities   of   the    owners   of   domcst.c   animals   a'e    ve.v 
nm"    ous,  those  which  relate  to  the   liability  of  the  p.-opr.etor 
o    w   d  a;imals   are  rare.     It  has  been   assumed,  rath.-    han 
decided,  that  the  latter  class  are   kept   at   the   per.     of   then 
owners      In  Rex  v.  Huggins,  2   Ld.  Raym.  15S3,  it  .s  sa.d. 
..There  is  a  difference  between  things  ferae  naturae,  as  l.on  , 
bea  s   etc.,  which  a  man  must  keep  up  at  his  per.l,  and  beasts 
thlare ,.;..«./-'-/--.  -'^  ^'-'^  ^^-"f  the  tamenesso 
the  r  nature,  such  as  oxen  and  horses.     In  the  latter  case,  the 
owl    must  have  notice;  in  the  former,  an  action  hes   agams 
Z  owner  without  notice."     The  case  in  wh.ch    h.s  was  sa.d 

V  s  an  indictment  for  murder,  but  the  language  here  g.ven  ,s 
copied  and  adopted  by  Duller,   in  his  Nisi  Pr.us      2  Bull.  N 

V  I,  It  will  be  observed  that  while  these  author.t.es  speak 
of  a  whole  class,  "things /.r^e  naturae,"  yet  the  exampleg.ven 
is  that  of  lions,  bears,  etc. 

So   in  a  late  case  in  our  own  courts.  Van  Leuven  v.  Lyke 
I  N  'y     :;i6,  Judge  Jewett,  after    stating  the  rule  .n  respect 
to  dome"st?c  animals,  says:   "But  as  to  animals  ferae  naturae, 
u  h  as  lions,  tigers,  and  the  like,  the  person  who  keeps  then^ 
is  liable  for   any  damage  they  may  do,  without  not.ce,  on  . 
Iround  that  by  nature  such  animals  are  ferce  and  dangerous. 
Here  the   learned  judge,  although   adopting  the  same  class.- 
fication,  yet  states  the  true  ground  of  the  owner's  respons.b.l.ty. 
The  substance  of  the  rule   as  given  by  him  ,s,  that  one  who 
keeps  lions,  tigers,  or  other  fierce  and  dangerous  an.mds   .s 
liable  at  all  events  for  any  in  ury  they  may  do.     The  words 
yle  naturae  add  nothing  of  any  value  to  the  rule,  but  rather 
ind  to  mislead,  as  they  are  descriptive  of   many  an.mals  that 
nre  not  ferocious  or  dangerous. 

Pe°L  in  his  work  on  Evidence,  under  the  head  of  "Actions 
Founded  in  Negligence,"  has  the  following:  "If  one  man 
keep  a  lion,  bear,  or  any  other  wild  and  feroetorcs  an.mal,  and 
such  animal  escape  from  his  confineme.it  and  do  --^h.e  to 
another,  the  owner  is  liable  to  make  satisfact.on  for  the  misch  ef 
so  done,  without  further  evidence  of  negligence  m  h.mi  for 
c  -erv  person  who  keeps  such  noxious  and  useless  animals  must 
keep  them  at  his  peril.  On  the  contrary,  if  a  man  has  a  dog, 
a  bull    or  any  other  domestic  animal  such  as  are   usually  kept 


V^ta 


»i|iniiia>lwi*a>> 


aaiMWW"****^  ■ 


T 


t'UOl'ERTy. 

define  the  re- 
mals   a' a    very 

the   proprietor 
led,  rather  than 

peril  of  their 
5S3,  it  is  said: 
ftitrac,  as  lions, 
peril,  and  beasts 
the  tameness  of 

latter  case,  the 
tion  lies  against 
:h  this  was  said 
re  here  given  is 
•ius.  2  Bull.  N. 
authorities  speak 
lie  example  given 

Leuven  v.  Lyke, 
3  rule  in  respect 
Is  ferae  naturae, 

who  keeps  then^ 
lUt  notice,  on  "■ 

and  dangerous.' 

the  same  classi- 
;r's  responsibility. 

is,  that  one  who 
i^erous  animals,  is 
r  do.  The  words 
e  rule,  but  rather 
nany  animals  that 

:  head  of  "Actions 
ng:  "If  one  man 
ocious  animal,  and 
nd  do  mischief  to 
ion  for  the  mischief 
gence  in  him:  for 
'.elcss  animals  must 
£  a  man  has  a  dog, 
s  are  usually  kept 


EARL    V.    VAN    ALSTIXE. 


41 


nnd  are  indeed  necessary  to  the  existence  of  man,  no  action  is 
maintainable  without  proof  of  knowledge,  etc. ;  for  without 
Mich  knowledge  no  negligence  or  fault  is  imputable  to  the 
defendant."  Norris's  Peake,  4S6.  Three  things  are  worthy 
of  notice  in  this  extract.  In  the  first  place,  the  author  men- 
tions animals  that  are  not  only  wild  but  ferocious,  and  speaks 
of  them  as  not  only  noxious  but  useless.  In  speaking  of 
domestic  animals,  he  dwells  upon  their  utility  and  value. 
And  lastly,  he  makes  negligence  the  foundation  of  the  liability 
of  the  owner. 

Again,  Chitty,  under  the  head  of  "Actions  on  the  Case  for 
Xegiigence,"  gives  the  rule  as  follows:  "The  owner  of 
domestic  or  other  animals,  not  naturally  inclined  to  do  mischief 
as  dogs,  horses,  and  oxen,  is  not  liable  for  any  injury  com- 
mitted by  them  to  the  person  or  personal  property,  unless  it 
can  be  shown  that  he  previously  had  notice  of  the  animal's 
mischievous  propensity."  2  Chitty's  PI.  82.  This  accurate 
(.Icmentary  writer  did  not  fall  into  the  error  of  applying  the 
rule  to  the  whole  class  of  animals  domitae  naturae,  but  adds  the 
qualification,  "not  naturally  inclined  to  do  mischief."  By  his 
arrangement  of  the  subject,  too,  he  confirms  the  view  of  Peake, 
that  the  liability  is  based  upon  negligence. 

These  authorities  seem  to  me  to  point  to  the  following  con- 
clusions: (i)  That  one  who  owns  or  keeps  an  animal  of  any 
kind  becomes  liable  for  any  injury  the  animal  may  do,  only  on 
the  ground  of  some  actual  or  presumed  negligence  on  his  part. 
(3)  That  it  is  essential  to  the  proof  of  negligence,  and  suffi- 
cient evidence  thereof,  that  the  owner  be  shown  to  have  had 
notice  of  the  propensity  of  the  animal  to  do  mischief.  (3)  That 
proof  that  the  animal  is  of  a  savage  and  ferocious  nature  is 
equivalent  to  proof  of  express  notice.  In  such  cases,  notice  is 
presumed. 

These  views  derive  some  support  from  the  case  of  May  v. 
Burdett,  9  Q.  B.  10 1.  That  was  an  action  on  the  case  for  an 
injury  done  to  the  wife  by  the  bite  of  a  monkey.  The  declara- 
tion alleged  that  the  defendant  kept  the  monkey  wrongfully, 
well  knowing  that  it  was  of  a  mischievous  and  ferocious  nature, 
;ind  accustomed  to  bite,  etc.,  but  did  not  aver  that  the  defend- 
;int  had  been  guilty  of  any  negligence.  A  verdict  was  found 
lor  the  plaintiff;   and  the  defendant  moved  in  arrest  of  judg- 


.j^saaBW™- 


.,4       MM.  .ATIONS    TO  OWNEUSUIP  OF  PEUSONAl,  rROPKUTV. 

mcnt   ontheRVoun.l  that,  as  the  action   was  founded  in  nc<ili- 
"     ';   the  d'clavatiou  was    detective    in    not    contan.n,  any 
^venncnt  that  the   defendant  had   heen   .ud^  ^^;;^'r;Z 
The  nu.tion  was  overnded,  hein^  alter  verchct.     Ch.cf  Just.cc 
1)  n.vn,     said:     "Hut  the    concU.sion    to    be    drawn    from   an 
^:        tio    of  all  the  authorities  appears  to  us  to  be  this  :    that 
^  "    on  keepln,  a  >Mu:o.s  anhnal,  ../M  ^noMj^c  oi  .is 
1-onensities.  is  bound  to  keep  it  secure  at  his  perd,  and  that  .£ 
Ho  s  n^ischief,  n,^^i;rr>^rr  is  pr.sn.n.L     The   ne,h,ence   .s 
;lpi.v^  -cl^  an  anhnal  after  notice."     The  n.ury  for  u^uch 
•        tion  was  b,.ou,ht  was  done  by   an   anin.al  clearly  Jcrac 
»-,.    -.nd   vet  it   was   deemed    necessary   to    aver   the  m.s- 
:;t:,s    l-^L  the  ammal,  together  with  knowledge  on  the 
:,t  of  the  owner;   and  the  question  which  ---.  «-— ^^-J^ 
a,orately    discussed    was,   whether    the    phunt.ff    should  not 
h  ve  gone  still  further,  and  inserted  an  averment  of  ne,bgence. 
Having  shown,   then,    as  I   think,   clearly,   that  the  bab.hy 
does  not  depend  upon  the  classification  of  the  nn.mal  don,g  the 
t^^^  but  upon  its  propensity  to  do  mischief,  it  reman.s  to  be 
o     i^l^-red  whether  bees  are  animals  of  so  ferocous  a  d.spos.- 
Ton  that  every  one  who  keeps  them,  under  any  cncumstances, 
a.  his  peril       If  it  is  necessary  for  the  plaintiff  to  aver 
:r;:     t^^l^chievous  nature  of  the  animal,  nothing  of  U.e 
U^'^as  done  in  this  case;  but  if  courts   are  to   take  jud.cu 
notice  of  the  nature  of  things  so  familiar  to  n.an  as  bees,  wh.ch 
n  lose  they  would  be  justified  in  doing,  then  I  would  observe 
L;  'ho    ever'  it  mav  have  been  anciently,   in  modern  days  the 
bee  has  become  almost  as  completely  domest.cated  as  the  ok 
o    tltcow.     Its  habits  and  its  instincts  have  been  stnd.ed    and 
U  ro u.h  the  knowledge  thus  acquired,  it  can  be   control  ed  and 
n  :^  d  .vith  nearly  as  much  certainty  as  any  of  the  domest.c 
"n  mal  •   and,  altlJ.gh  it  may  be  proper  still  to  c  ass  ,t  among 
C  A  -  ■  -'^--'  '---^'  "-ertheless, be  regarded  as  con.ng 
"near  the  dividing  line;    and,  in  regard  to  Us  propens.ty  to 
m  fc  "e     1  apprehend  that  such   a  thing  as  a  sertous  n^jury  to 
m.sch.et    1    n  .^  ^^^^^  ,^^^  occurrmg 

^:::^^^^^^  certaimy  than  injuries  arising  from  the 
.hlh  I  have  referred,  not  yet  noticed,  and  that  .s  that  the  law 


^^- 


■ttm^^ 


Ol'EUTV. 


KAIU,    V.    VAN    AI.STINE. 


45 


dcd  in  nc<,'li- 
iiitaiiiiti;^'  any 
f  noglij^encc. 
Chief  Justice 
iwvn    from   an 

be  this:  that 
jivlviigc  of  its 
•11,  and  that  if 

negligence  is 

jury  for  which 

clearly  ferae 

aver  the  inis- 
iwledge  on  the 
;  and  was  very 
iff    should  not 

of  negligence, 
lat  the  liability 
limal  doing  the 
t  remains  to  be 
;ious  a  disposi- 

circunistances, 
laintiff  to  aver 
,  nothing  of  the 

0  take  judicial 

1  as  bees,  which 
I  would  observe 
iiodern  days  the 
cated  as  the  ox 
2en  studied,  and 
;   controlled  and 
of  the  domestic 
o  class  it  among 
jarded  as  coming 
Its  propensity  to 
serious  injury  to 
e,  not  occurring 

arising  from  the 

he    authorities  to 
at  is  that  the  law 


looks  with  more  favor  upon  the  keeping  of  animals  that  are 
useful  to  man,  than  such  as  are  purely  noxious  and  useless. 
And  the  keeping  of  the  one.  although  in  some  rare  instances  it 
iiiav  do  injury,  will  he  tolerated  and  encouraged,  while  there  is 
iioliiing  to  excuse  the  keeping  of  the  other.  In  the  case  of 
X'rooman  v.  Lawyer,  13  Johns.  329,  the  court  say:  ''If  dam- 
age l>e  done  by  any  domestic  animal  kept  /T'/w/.vi();-r();/rr;//(7/(-<', 
the  owner  is  not  liable  to  an  action  without  notice."  The 
utility  of  bees  no  one  will  question,  and  hence  there  is  nothing 
to  call  for  the  application  of  a  very  stringent  rule  to  the  case, 
Tpon  the  whole,  therefore,  I  am  clearly  of  the  opinion  that  the 
owner  of  bees  is  not  liable,  at  all  events^  for  any  accidental 
injury  they  may  do. 

The  (jucstion  is  still  left,  whether  the  keeping  of  these  bees 
so  near  the  highway  subjects  the  defendant  to  a  responsibility 
which  would  not  otherwise  rest  upon  him.  I  consider  this 
([uestion  as  substantially  disposed  of  by  the  evidence  in  the 
case.  It  appears  that  bees  had  been  kept  in  the  same  situation 
for  some  eight  or  nine  years,  and  no  proof  was  offered  of  the 
slightest  injury  ever  having  been  done  by  them.  On  the  con- 
trary, some  of  the  witnes^ses  testify  that  they  had  lived  in  the 
neighborhood,  and  had  been  in  the  habit  of  passing  and  repass- 
ing frequently,  with  teams  and  otherwise,  without  ever  having 
hccn  molested.  This  rebuts  the  idea  of  any  notice  to  the 
defendant,  either  from  the  nature  of  bees,  or  otherwise,  that  it 
would  be  dangerous  to  keep  them  in  that  situation;  and,  of 
course,  upon  the  principles  already  settled,  he  could  not  be 
held  liable. 

The  judgment  of  the  county  court  must  be   afHrmed. 

Judgment  affirmed. 

Consult— Wood  v.  Chalker,  31  Conn.  121,  Si  Am.  Dec.  175;  Loomis 
V.  Terrv,  17  Wend.  496;  Drake  v.  Mount,  33  N.  J.  (L.)  441 ;  Rider  v. 
\Vhite,"65  N.  Y.  54  ;  Jewett  v.  Gage,  55  Me.  53S,  93  Am.  Dec.  615  ;  Oakes 
V.  SpauUiing.  40  Vt.  347,  94  Am.  Dec.  404;  Congress  Spring  Co.  v.  Edgar, 
99  U.  S.  645;  Marble  v.  Ross,  124  Mass.  44;  Laverone  v.  Mangianti,  41 
Cal.  138,  10  Am.  Rep.  260;  Evans  v.  McDermott,  49  N.  J.  (L.)  60  Am. 
Rep.  603. 


46       L.Ml.  ATtONS    lO  C.UNKUSllll-  OK    ■■EUSONAL  VMOVl'MVY. 

§  11.    Same  -Injuries  by  domestic  animals  and  liability  of 
owner. 

VAN  LEUVEN  v.  LYKE. 

t>N-Y.  SI3-] 

Court  of  Appeals  of  New  York,  1848. 

Van  Leuven  sued  Lykc  and  Dumond  in  a  justice's  court,  ami 
recovered  judRment:  which  was  aillrmed  by  the  common  pleas 
on  ceriioran,  and  reversed  by  the  supreme  court  on  error 
r.Dcnio  127.)  The  plaintiff  brought  error  to  th.s  court.  1  he 
cassis  lulhcieVtly  statei  in  the  opinion  of  the  court,  as  delivered 
by  Jewett,  C.  J. 

M.  Schoonmaker  for  the  plaintiff  in  error.    T.  R.  Westbrook 
for  the  defendants  in  error. 

Jewett,  C.  J—It   is   alleged   in  the  plaintiffs  declaration, 
.'that  on  the  twenty-seventh  day  of  November,    1844,   at,  etc 
the  defendants  were  the  owners  of  a  certain  sow  and  p,gs,  wh,ch 
sow  and  pigs,  to  wit,  on  the  day  and  year  aforesaid,  to  w.t,  a 
h    place  a?o;esaid,  bit,  damaged,  and  mutilated  and  mangled 
.  certain  cow  and  calf  of  the  plaintiff,  while  the  sa.d  cow  was 
in  the  act  of  calving,  so  that  said  cow  and  calf  both  d.ed,  to   he 
plaintiffs  damage  $5o.-     To  which  the  defendants  pleaded 
the  general  issue.     There  was  evidence  given  on  the  trial  suffi- 
cien"^  to  warrant  the  jury  in  finding  that  the  plaintiff  s  cow  and 
calr  were  destroyed  by  the  defendants'  sow  and  pigs  in  the  man- 
ner set  forth  in  the  declaration,  upon  the  land  of  the  plaintiff, 
where  the  sow  and  pigs  were  at  the  time  of  committing  the  said 
iniurv.     But  there  is  no  allegation  in  the  declaration,  or  evidence 
eive^  on  the  trial,  th.^  .wine  possess  natural  propensities  which 
fead  them,  instinctively,  to  attack  or  destroy  animals  in  the  con- 
dition of  the  plaintiffs  cow  and  calf.     Nor  is  there  any  allega- 
tion  or  evidence  that  the  defendants  previously  knew,  or  had 
notice,  that  their  swine  were  accustomed  to  do  such  or  sinrid^ir 
mischief,  or  that   the  swine  broke  and  entered  the  plaintiff  s 
close,  and  there  committed  the  mischief  complained  of. 


J«e»&v 


iKM'Ku  ry. 


VAN    LEUVEN   V.    I.YKK. 


47 


nd  liability  of 


^48. 

tice's  court,  ami 
e  common  pleas 
court  on  error. 
I  this  court.  The 
»urt,  as  delivered 


C.  R.  Wcstbrook 


iff's  declaration, 
,    1844,   at,  etc., 
\-  and  pigs,  which 
■esaid,  to  wit,  at 
ted  and  mangled 
he  said  cow  was 
:  both  died,  to  the 
;f  end  ants  pleaded 
on  the  trial  suffi- 
laintiff's  cow  and 
[1  pigs  in  the  man- 
1  of   the  plaintiff, 
>mmitting  the  said 
.ration,  or  evidence 
propensities  which 
animals  in  the  con- 
3  there  any  allega- 
isly  knew,  or  had 
3o  such  or  similar 
cred  the  plaintiff's 
plained  of. 


It  is  a  well  settled  principle  that  in  all  cases  .vherc  an  action 
of  trespass  or  case  is  brougi)t  for  mischief  done  to  the  person  or 
pcisona!  property  of  anotherby  animals  mansurlac nat/irac,  such 
as  horses,  oxen,  cows,  sheep,  swine,  anil  the  like,  the  owner 
must  be  shown  to  have  had  notice  of  their  viciousncss  before  he 
can  be  charged,  because  such  animals  are  not  by  nature  tierce 
f)r  dangerous,  and  such  notice  must  be  alleged  in  the  declara- 
tion;  but  as  to  animals _/lv'rt!(?  naturae,  such  as  lions,  tigers,  and 
the  like,  the  person  who  keeps  them  is  liable  for  any  damage 
they  may  do,  '^vithoiit  notice,  on  the  grounil  that  by  nature  such 
animals  arc  y/crcc  and  dangerous.  9  IJac.  Abr.,  tit.  "Tres- 
pass,"!, 505;  Jenkins  V.  Turner,  i  Ld.  Raym.  109;  Mason 
V.  Keeling,  i  Ld.  Raym.  603;  s.  c,  12  Modern,  332;  Rex  v. 
Iluggins,  2  Ld.  Raym.  15S3;  i  Chitty's  PI.  [ed.  1S13]  69,  79; 
Vrooman  v.  Lawyer,  13  Johns.  339;  Hinckley  v.  Emerson,  4 
Cow.  351.  Hut  this  rule  does  not  apply  where  the  mischief  is 
done  by  such  animals  while  committing  a  trespass  upon  the 
close  of  another. 

The  common  law  holds  a  man  answerable  not  only  for  his 
own  trespass,  but  also  for  that  of  his  domestic  animals  ;  and  as  it 
is  the  natural  and  notorious  propensity  of  many  of  sucl'  animals, 
such  as  horses,  oxen,  sheep,  swine,  and  the  like,  to  rw-^.  the 
owner  is  bound  at  his  peril  to  confine  them  on  his  own  land; 
and  if  they  escape  and  commit  a  trespass  on  the  lands  of  another, 
unless  through  defect  of  fences  which  the  latter  ought  to  repair, 
the  owner  is  liable  to  an  action  of  trespass  quare  clausttm  f  regit, 
though  he  had  no  notice,  in  fact,  of  such  propensity.  3  Bla. 
Comm.  211;  Chitty's  PI.  70.  And  where  the  owner  of  such 
animals  does  not  confine  them  on  his  own  land,  and  they  escape 
and  commit  a  trespass  on  the  lands  of  another,  without  the  fault 
of  the  latter,  the  law  deems  the  owner  himself  a  trespasser  for 
having  permitted  his  animals  to  break  into  the  inclosure  of  the 
former  under  such  circumstances.  And  in  declaring  against 
the  defendant  in  an  action  for  such  trespass,  it  is  competent  for 
the  plaintiff  to  allege  the  breaking  and  entering  his  close  by 
such  animals  of  the  defendant,  and  there  committing  particular 
mischief  or  injury  to  the  person  or  property  of  the  plaintiff; 
and,  upon  proof  of  the  allegation,  to  recover  as  well  for  the 
damage  for  the  unlawful  entry  as  for  the  other  injuries  so 
alleged,  by  way  of  aggravation  of  the  trespass,  without  alleging 


!''■. 


4S      ...Nin  AT.OSS  TO  ..WNKUS.I.r  ..K    .'UUSONAI.  i-noi-ERTV. 

or  nn.vin,r  that  the  .l.fnulant  Inul  M-.l.a-  that  Lis  animals  IkuI 
Jn  acc,.:t..nu-a  to  <lo  such  or  simih.r  misdm-f.  The  brc-akuv, 
and  cnteri.,,'  tho  ch.s.,  in  sn.h  action,  is  the  substant.vc  allcKa- 
ti<.n,  and  the  rest  is  h.id  as  matter  of  aKfrravat.on  on  y. 

This  principle    is   recognized  as  son.ul  by  several  adjudged 
cases.     In  the  case  of  Heckwith  v.   Shonlike,  .,  Hmr.  2092,  tlu 
action  svas  trespass  for  entering  the  plaintiffs  close  vv.th  Rnns 
,nd  <lo^.s,  and  killing  his  deer.      The  evidence  showed  tlu.t 
defen.lants    entered  u  ith  Runs    and    do^s   mto   a   close  of     Ik 
,,,,,,i,f  a.ii.inins  to  his  paddock,   and  that   then-   '  "«  P" ';" 
;,„,,,  and  killed  one  of  the  plaintiffs  deer.      It  was  held  to  In 
s.f/!rir,^t    evidence   to   prove   the    defendants   trespassers      an. 
ti;.v  were  held  liable  for  the  injury  done  by  then-  do,,s  althou.,h 
it  was  not  shown  that  they  hul  any  knowledge  or  not.ce  of  the 
propensitv  of  the  dog  to  do  such  or  similar  injury.     In  Angus 

anfs  oxenlreaking  into  the  inclosure  of  the  plabUiff.   and  there 
eoring  his  cow  so  as  to  kill  her;   and  upon   the  ground  th.  t  th 
defendant  had  neglected  to  cont^ne  his  oxen  on  h,s  -)"    j^- ' 
„,,  ,,,,  thev  were  trespassing  on  the  lan.l  o    the  P'-"*  ^; 
was  held  liable  for  the  injury  done,  although  ,t  was  not  alkged 
or  proved  that  he  knew  or  had  notice  of  the   P'^'^^'^y^  !  ^ 
oxen  to  con.n.it  such  an  injury.      And  so  m  Dolph  v.  l;e,ns. 
7  W    &  S.  C567,  where  the  action  was  trespass,  before  a  justu-e 
of  the  peace,   and  there  tried  without   any   declaration   havmg 
been  rt  ed:   therefore  the  court  held  that  the  case  must  be  cn- 
idered   as   if   the   case   had  been   tried   o^t'- --^^-^  '  ;; 
declaration  for   the   plaintiff   which   the   evulence   would  have 
w   nanted.     The  evidence  was  that  the  bull  o     the  defendan  , 
which  was  running  at  large,  broke  and  entered  nUo  the  n^clos- 
ure  of  the  plaintiff,  where  his  horse  was  feeding  on  the  grass 
"owing    tlerein.    and    gored    him   so   that  he  d.ed  by  reason 
t  .reof  in  a  few  days.     The  court  held  it  to  be  clear    rom  t 
evidence  that  the  .lefendant  might  have  been  declared  aga,   st 
forhaving  broken  and  entered  the  close  of  the  plaint.ff,  and  Uk- 
.rass  and  herbage  of  the  plaintiff  there  lately  grow.ng  w.thh 
bull  eaten  up,  trod  down,  and  consumed;  and  might  also  ha^ 
been   charged   in  the  same   <leclaration    with   havmg  killed  o 
destroyed  the  plaintiffs  horse  or  colt  with  his  bull. 


*  V 


_«)f«?': 


I'Horr.iiTY. 


LAWTON    V.    STKKLK. 


49 


lis   animals  liail 
'Pile  breaking 
istaiitivc-  allrj^a- 
)ii  only. 

L'vcral  adjudjjfii 
nun-.  2092,  tin 
close  with  guns 
showrd  Uiat  tin- 
,   a    close"   of   II1C 
;licir  (1<>U  P"lUil 
was  held  to  be 
trespassers,     and 
eir  docj,  althougli 
or  notice  of  tlie 
ijnry.     In  Animus 
i  for   the  dcfend- 
laintiff.   and  there 
c  ground  that  the 
)n  his  own  land, 
[  the  plaintiff,  he 
it  was  not  alleged 
propensity  of  his 
Dolph  V.  Ferris. 
s,  before  a  justice 
leclaration  having 
:ase  must  be  con- 
the  most  favorable 
ience   would  have 
of  the  defendant, 
•ed  into  the  inclos- 
ding  on  the  grass 
he  died  by  reason 
be  clear  from  the 
n  declared  against 
lie  plaintiff,  and  the 
ly  growing  with  h 
nd  might  also  hax 
h  having  killed  o. 
is  bull. 


Hut  in  the  case  under  consideration  liiire  is  no  allegation 
charging  the  defenilants'  swlnc  with  doing  any  act  for  wliich 
the  law  iiolds  tiie  defendants  accoimtable  to  the  plaintiff  with- 
out alleging  ani'  proving  a  scicidtr.  Ili'd  the  plaintiff  stated 
in  his  declaration  such  ground  of  liability,  or  charged  that  the 
swine  broke  and  entered  his  close  and  there  committed  the  inis- 
tliief  complained  (jf,  and  .sustained  lii»  tieclaration  by  evidence, 
I  am  of  opinion  that  he  would  have  been  entitled  to  recover  all 
the  damages  thus  sustained;  but  as  lie  has  not  stated  in  his 
declaration  either  ground  of  liability,  the  defendants  ought  not 
ti)  be  deemed  to  have  waived  the  objection  by  not  making  it, 
s-pecilically,  before  the  justice.  I  think  the  judgment  .should  be 
allirmed.  Judgment  atlirmed. 

Consult — Bush  v,  Rrainard,  i  Cow.  78,  iji  Am.  Dec.  513;  .Scott  v. 
(irover,  56  Vt.  499,  48  .\m.  Rep.  S14;  Chiiiiot  v.  Larson,  43  Wis. 
536,  28  .\m.  Kep.  5^)7;  Canetox  v.  Crenshaw,  i\  .Mo.  J99;  Knight  v. 
Aliert,  6  Pa.  .St.  .^72,  47  \n\.  Dec.  478;  Gorman  v.  K.  Co.,  20  .Mo.  442, 
7:  .\iri.  Dec.  220;   Hale  v.  \an  Dever,  67  Mo.  732. 


§  12.    Same— The  police  power  of  the  state. 

LAWTON  V.  STEELE. 

[152  U.  S.  ij4.] 

Sufremc  Court  oj" the  United  States,  ^Sgj. 

In  error  to  the  supreme  court  of  the  state  of  New  York,  to 
review  a  judgment  of  that  court,  affirming  a  judgment  of  the 
general  term,  and  ordering  judgment  absolute  for  the  defeiul- 
;nil,  William  N.  Steele,  in  an  action  brought  by  George  W , 
Lavvton  et  al.,  plaintiffs,  for  the  conversion  of  certain  fish  nets, 
the  property  of  the  plaintiffs,  taken  and  destroyed  by  the 
defend. uii      ''    'e.      119N.  Y.  326.     Affirmed. 

wr.  Justice  Hkown: 

This  was  a  ction  at  law  instituted  in  the  supreme  court  for 
the  connty  of  Jefferson  by  the  plaintiffs  in  error  against  the 
defendant  in  error,  together  with  Edward  L.  Sargent  and  Rich- 


-SS¥ta)ifi«;.8«|K. 


Li 


50     T.1MITAT10XS  TO  owNKRSinP  or  PEKSOxAr.  ruorEUTV. 

A  r    Shermnn  for  the   conversion   of   fifteen   hoop  and  fyke 
ard  h.  Sherman  tor  t.  Defendants  Steele  and  Sai- 

nets  of  the  ^^f^J^^^^^^;    .^dant  She„nan  pleaded 

^:^  '^  :le  state  of  New  York,  with  power  to  g.e  d.rec.K.ns 

"  "  me  and  fish  protectors  with  regard  to  the  enfovce.n^t  ot 

he^L'.me  law;  that  defendant  Steele  was  a  game  and  fish  pi 0- 

tordu      appointed  hv    the    governor   of  the   state  of  New 

Yol    -dth'  the  nets  .ued   for  were   taken   possession  of  b 

Steele   IS  such  came  and  fish  protector,   upon   the   grou,  d 

■rul  thereby  became  a  public  nuisance. 

The      cts  were  undisputed.     The  nets  were  the   property  o 

the  pHimiHs  and  were  laken  away  by  the  defendant  Steele  and 

the  plainutts^    the  time  of  the  taking  most  of  the  nets  were  m 

1  Xs  of  n.    Black  River  Bay,  being  used  for  fishing  pui- 

o.         nd  the  residue  were  upon  the  shore  of  that  bay    having 

:::  U    been  used  for  the  same  purpose.     The  P^-^tiHs  we. 

fishermen  and  the  defendant  Steele  was  a  state  game  and  t,M 

no  el"      The  taking  and  destruction  of  the  nets  were  clanncd 

to  he  been  justifiabi:  under  the  statutes   of   the  state  relating 

to  have  been  ju  plaintiffs  claimed  there 

to  the  protection   ot   ^'•\''^'^   ^"^'   ^  ..^^  if  they  constituted 

WIS  no -iustification  under  the  statu.es,   .  la  11  u  ey 

was  uu    u  unconstitutional. 

$166.09  costs.  u  J   ^^^j  ^  further  appeal 

was   reversed    and   a  u  ^^^^^^  ^  . 

-lUoweci  to  the  court  of   appeals.     Un   appeal 
ure-ds  the  cdev  of  the  general  term  granting  a  new  t i.al  xv  s 
Eed   and"  judgment   absolute    ordered    for   the    defendant,] 


.  V^atstiii'siS.iVJ 


^  .    ^~ 


i^am 


.r,  rRorF.iiTY. 


LAWTON    V.    STKEI.E. 


cn  hoop  and  fyke 
Its  Steele  and  Sai- 
t  Shei  aian  pleaded 
imissionersof  Fiab- 
r  to  give  directions 
he  enforcem'^nt  of 
game  and  fish  pro- 

the  state  of  New 
:n  possession  of  b / 
,  upon  the  groui  d 
of  the  state  in  vie- 

of  fish   and   game 

ere  the   property  of 

efendant  Steele  and 

of  the  nets  were  in 

ised  for  fishing  pur- 

of  that  bay,  having 

The  plaintiffs  \''crc 

state  game  and  li-h 

the  nets  were  claimed 

of   the  state  relating 

untiffs  claimed  there 

id  if  they  constituted 

ere    unconstitutional. 

iissioner.     Defendant 

unty  Fish  and  Game 

fendar/.s   to   be  liable 

cited,  or   directed  the 

^  rendered   subject  to 
aintiffs  against  defend- 
vor  of  defendants  Sar- 
lew    trial    was    denied  j 
;or  $2i6  damages  and 
ral  term  this  judgment 
I   and  a  furth(  r  appeal 
ppeal   to   the   court  of 
anting  a  new  trial  wasj 
ed    for    the    defendant. 


119  X.  Y.  336.     Plaintiffs  thereupon  sued  out  a  writ  of  error 
from  this  court. 

This  case  involves  the  constitutionality  of  an  act  of  the  legis- 
iMture  of  the  state  of  New  York,  known  as  chapter  5^1,  Laws 
<.)f  New  York  of  iSSo,  as  amended  by  chapter  317,  Laws  of 
New  York  of  1SS3,  entitled  "An  Act  for  the  Appointment  of 
Game  and  Fish  Protectors." 

Py  a  subsequent  act,  enacted  in  18S6: 

"Section  i.  No  person  shall  at  any  time  kill  or  take  from 
tlie  waters  of  Henderson  Bay  or  Lake  Ontario,  within  one  mile 
from  the  shore  between  the  most  westerly  point  of  Pillar  Point 
and  the  boundary  line  between  the  counties  of  Jefferson  and 
Oswego  *  *  *  any  fish  of  any  kind  by  any  device  or 
means  whatever  otherwise  than  by  hook  and  line  or  rod  held  in 
hand.  But  this  section  shall  not  apply  to  or  prohibit  the  catch- 
ing of  minnows  for  bait,  providing  the  person  using  nets  for 
that  purpose  shall  not  set  them  and  shall  throw  back  any  trout, 
bass,  or  any  other  game  fish  taken,  and  keep  only  chubs,  dace, 
suckers,  or  shiners. 

"Sec.  2.  Any  person  violating  any  of  the  provisions  of  this 
act  shall  be  guilty  of  a  misdemeanor,  and  liable  to  a  penalty  of 
$50  for  each  offense." 

By  the  act  of  iSSo,  as  amended  by  the  act  of  1SS3: 

"Sec.  3.  Any  net,  pound,  or  other  means  or  device  for  tak- 
ing or  capturing  fish  or  whereby  they  m.y  be  taken  or  captured, 
set,  put,  floated,  had,  found,  or  maintained,  in  or  upon  any  of 
the  waters  of  this  state,  or  upon  the  shores  of  or  islands  in  any 
of  the  waters  of  this  state,  in  violation  of  any  existing  or  here- 
after enacted  statutes  or  laws  for  the  protection  of  fish  is  hereby 
declared  to  be  and  is  a  public  nuisance,  and  maybe  abatea  ind 
summarily  destroyed  by  any  person,  and  it  shall  be  the  duty  of 
each  and  every  protector  aforesaid  and  of  every  game  constable 
to  seize  and  remove  and  forthwith  destro^,  the  same  •  *  • 
and  no  action  for  damages  shall  lie  or  be  maintained  against 
any  person  for  or  on  account  of  any  such  seizure  and  destruc- 
tion." 

This  last  section  was  alleged  to  be  unconstitutional  and  void 
for  three  reasons:  First,  as  depriving  the  citizen  of  property 
without  due  process  of  law;  second,  as  being  in  restraint  of 
tlie  liberty  of  the  citizen;   third,  as  being  an  interference  with 


5.       ,,,M1TAT10N8  TO  OW^E-SH.P  OF    PERSONAL  PPOPEUTV. 

Tl-,P  trill  court  Tucd  the  first   of   the    noovc    i^   i 
PU^ITk";  X  »n.Hhc  o.,Krs  a,,insu.,c.,  and  i.Jgm=.>tsv» 

ihcKLpon  entered  in  favor  of  the  pla.nt.fts.  _ 

The  eonslitntionality  of  the  section  in  qtiest.on  was,  ho^^e^e,, 
s„I.^nedhyt  general  term  and  by  the  conrt  of  appeals  npoa 
:,;:  grold  of  it^leing  a  la.vfnl  e.ereise  of  the  pol.ee  po.e,  et 

'"Vhe'e^tent  and  limits  of  what  is  known  ns  the  police  po.ver 
has  Wn  rfn,itf„l  snhjee.  of  disenssion  h,  ^^^^^^Z^ 

l:rlnd^oi•s..,^hedestr„e.ion„raha«.^^^^^^^^^^^ 
nrocecdines,  of  whatever  may  be  regaiciea  as,     i 
r^^rth!  newer  it  has  been  held  that  the  state  may  orde,  the 
Lnde.  this  poue  otherwise  endanger- 

of  wooden  bu.ldmss  m  cities  ,  S        interments  in  buri;.l 

ntlu-r  me-uis  of  public  conveyance,  and  of  inteiments 
other  "^'-'":^  "    P       ^^,^  ^f  objectionable  trades  in  certain  local- 
s'" the      r^^l-7  v-^iniion  of  children;  the  con.nemont 
n    the  insane  or  those   afflicted   with   contagions  diseases;  tbc 

:rn;L^::o:on..ha..^^^^^^^^^^^^^ 

but  what  measures   aie  necessaiy   lor  i 

•   f.rPst.      Barbierv.  Connolly,  113  U.  S.  27;   Kidd  v.  l  eai 
"       ?  S  U   S    I       To  justify  the  public  state  in  thus  mterpos- 
son,  12S  U.  b.  I.      i  J  ^^^^^  J,,,,, 

;i;!.';:,::r  !:<  CHle'^eLali;,  as  distinguished  fro,., 

;Sme  .       rte  P"-TOse.  and  no.  nndnly  oppressive npontn  |; 
vMuaTs.     The  legislature  may  not,  under  the  gnrse  of  pro.cc. 


i> 


UOPEUTY. 


LAWTON    V.     STEELE. 


53 


United  3tatc<:. 
propositions  in 

1  judgment  was 

was,  however, 
,f  appeals  upon 
police  power  of 

16  police  power 
appellate  couvls 
irsally  conceded 
ety,  health,  and 
;nt,  by  summary 
public  nuisance. 
;e  may  order  the 
;rwise  endanger- 
uch  as  are  in  tlic 
;ased  cattle ;   tlic 
the  prohibition 

of  railways  and 

rments  in  buri;il 

in  certain  local- 

the  confinement 
)ns  diseases;  t!ie 
mkards  •  the  sup- 

of   ill   fame;  the 
.-here  intoxicatin;4 

2  state  may  intcr- 
,   and  in  this  pn- 

in  the  legislatiue 
he  public  require, 
)rotection  of   such 
27;   Kidd  V.  Pear- 
e  in  thus  interpos 
must  appear,  fii>t, 
distinguished  from 
rference;  and,  sec- 
ry  for  the   accom- 
)pressive  upon  indi- 
e  guise  of  protect- 


ing the  public  interests,   arbitrarily  interfere  with   private  busi- 
ness or  impose  unusual  and  unnecessary  restrictions  upon  lawful 
occupations.     In  other  words,  its  determination  as  to  what  is  a 
proper  exorcise  of  its  police  power   is  not  final  or  conclusive, 
luit  is  subject  to  the  supervision  of  the   courts.      Thus    an  act 
rcciuiring  the  master  of  a  vessci  arriving  from  a  foreign  port  to 
report  the  name,  birtliplace,  and  occupation  of  every  passenger 
and  the  owner  of  such  vessel  to  give  a  bond  for  every  passenger 
so  reported,  conditioned    to    indemn-fy   the   state    agiiiiist    any 
expense   for   the   support  of  the  persons  named  for  four  years 
thereafter,  was  held  by  this  court  to  be  indefensible  as  an  exer- • 
cisc  ot  the  police  power  and  to  be  void  as  interfering  with  the 
rijjht  of  congress  to  regulate   commerce   with   foreign   nations. 
Henderson  v.  \Vickham,  92  U.  S.    259.     A   similar  statute   of 
California,  requiring  a  bond  for  certain   classes  of  passengers 
described,  among  which  were  "lewd   and   debauched  women" 
was  also  held  to  show  very  clearly   that    the   purpose   was  to 
extort  money  from  a  large  class  of  passengers,    or  to   prevent 
their  immigration   to   California   altogether,    and   was  held  to 
invade  the  right  of  congress.     Chy  Lung  v.  Freeman,  92  U.  S. 
275.     So  in  Hannibal  &  St.  Joe  R.    Co.   v.   Husen,   95   U.  S. 
465,    a    statute    of  Missouri  which  prohibited  the   driving   of 
Texas,  Mexican,  or  Indian  cattle  into  the  state  between  certain 
dates  in  each  year  was  held  to  be  in  conflict  with  the  commerce 
clause  of  the  constitution,   and  not  a  legitimate  exercise  of  the 
police  powers  of  the  state,  though  it  was  admitted  that  the  state 
might  for  its  self-protection  prevent  persons  or   animals  having 
contagious  diseases  from  entering  its  territory.     In  Rockwell  v. 
Nearing,  35  N.  Y.  302,  an  act  of  the  legislature  of  New  York 
which  authorized  the  seizure  and  sale  without  judicial  process, 
of  all  animals  found  trespassing  within  private  inclosures  v,  as 
held  to  be  obnoxious  to  the  constitutional  provision  that  no  per- 
son should  be  deprived  of  his  property  without  due  process  of 
huv.     See,    also,  Austin  v.  Murray,  16  Pick.  121;   VVatertown 
V.  Mayo,  109  Mass.  315,   12  Am.  Rep.  694;   Butchers' Benev. 
Association  v.  Crescent  City  L.  S.  L.  &  S.   H.  Co.  ("Slaugh- 
ter House  Cases"),  83  U.  S.  16  Wall.  36;   Re  Cheesebrough, 
7SN.  Y.  232;  Brown  v.   Perkins,  2  Gray,   89.     In   all   these 
cases  the  acts  were  held  to  be  invalid  as  involving  an  unneces- 
sary invasion  of  the  rights  of  property  and  a  practical  inhibition 


5t      UM,TAT,0.,  TO  O^VNBnS,™  O.    PEKSO.A..  V.O.K.T,- 

„,  ccr.ain  occupations  W-mless  in  >hc„.c,vcs  anJ  wHc.  mis.-. 
„nJ    laws  limiting  the  season  ""I"'  ;^^;*  prescribing 

rTit:itr;:.-.«si,....ca^^^^ 
-rt'',r;;:::;'i,n::"eiarar.reL.e,,a,iarig,,t.o 

?r;.:V,sLriesl  C,,es.,pea.e  Ba,  V,    ™^^^ 

to  take  or  captnrc  oysters  u  th  a  »°°P  "        |     .     ,^i^  .u. 

penalty  of  for.ei.nre  "P-  '^^  -  -'  ^^^^  ,„„r„r,ion  o. 
The  avowe,!  ob^e.  o    '^'^^^^^..^U  in  ta,<ing  them. 

:^;;.ir::;To:"rs:i:i^be  co„rt,  ..the  .^--o^^^i 

liberty  o.  taking  oysters,  -«^«:;  '  ^.-l^Jolfr  it ly 
,    „  injury  to  »  on,  n  may    elo^^^^^  ^^^.,^,^,„.^  ^^, 

be  enjoyed.        It  n\  as  neiu  coasting  trade  under 

even  though  the  ve-1  w..  env.   ed  f  M^^ast    g  ^  ^  ^ 

the  act  of  congress      ^° J"  ^m.th   ^  ^^^^^  ^^^^^^.^^  ^^^.^_ 

similar  act  was  held  to  be  vabd  =^.l^^°"g  ^^em  to  make 

l.tive  powers  in  boards  of  supc^.so,     au    on.mg  ^^^^^  ^ 

,         for  tl.epro.cUon  o     ..IWu^  «  -r  ^^^^^  ^^^  ^^  ^^^^^^^_ 

Roberts,  59  N.  «•  ^5^,47  I    ^^^^^^.^  ^^^  ^^  ^^^^.^  p^.^. 

ment  for  takmg  fish  out  ot  nav>  ^  ^^^^  ^^^^ 

scribed  by  statute    .t  .as  -^  ^.y  th^  comf  ^^^^    ^^  ^^„ 

The  takmg  and  selgo-t  ^^^^   ,^^,^.„,,j,„  ,f  ^he  privi- 

r"  ""-X  bv        d  sCtion  consequent  upon  the  unrestrained 
lege  or  right  by  ^^^/■^'']^'  ^  ^^  i^j^Hous  to  the  com- 

^^"  •  "1  ^:^    e  iUs  :^;^^he  authorii  of  the  legislature 

of  talLg  fish  a,^  game  ^ ^;;^--- ^  ^^ laws  are 
and  merchandise.     For  tins  puip  exercised 

f  ^     Thp  nower  to  enact  such  laws  has  long  oeen  c.  c 
enacted.    Ihepowe   roc  ...  ought  not   now   to  be 

and  so  beneficially  for  the  public  that  it  ought 
called  into  question."     Co^  -  Chapin    5  1 'c^.     9^^_^^^^^   ,, 
Dec.  3S6;  McCready   v.  Virginia,   94   I- •  S^  39    , 
Welsh,  9  Pick.  92;  Com.  v.  Essex  Co.,  13  C^iay,  .4    - 


OrERTY. 


LAWTOX    V.     STEELE. 


:5D 


1  which  might 
:rests. 

r,  has  always 
police  power, 
■ds  and  wild 
id  prescribing 
rht  have  been 
1  V.  Maryland. 

had  a  right  to 
ng  it  unlawful 
-,d  to  inflict  the 

in  this  pursuit. 
!  destruction  of 
in  taking  them. 

of  the  common 

of  guarding  it 
imsoever  it  may 
rfciture  existed, 
iting  trade  under 

8  N.  Y.  472,  a 
ed  certain  legis- 
ng  them  to  make 
sh.  In  State  v. 
:h  was  an  indict- 
at  of  season  prc- 
'At  common  law 
;  common    to  all. 

and  game  at  cer- 
:tion  of  the  privi- 
n  the  unrestrained 
uious  to  the  coni- 

of  the  legislature 

time  and  manner 
is  articles  of  food 
id  game  laws  are 
:)ng  been  exercised 
ht  not  now  to  be 
?ick.  199,  i<^  Am. 
,  391;  Vinton  v. 
Gray,  24S ;  Phelps^ 


V.  Racey,  60  N.  Y.  10,  19  Am.  Rep.  140;  Ilolyoke  Water 
Tower  Co.  v.  Lyman,  S2  U.  S.  15  Wall.  500;  fientile  v.  State, 
2()  Ind.  409;  State  v.  Lewis  (Ind.),  20  L.  R.  A.  52. 

As  the  waters  referred  to  in  the  act  are  unquestionably 
within  the  jurisdiction  of  the  state  of  New  York,  there  can  be 
no  valid  objection  to  a  law  egulating  the  manner  in  which  fish- 
ing in  these  waters  shall  be  carried  on.  Hooker  v.  Cumniings, 
:o  Johns.  91,  11  Am.  Dec.  249.  The  duty  of  preserving  the 
fisheries  of  a  state  from  extinction  by  ])rohibiting  exhaustive 
methods  ot  fishing  or  the  use  of  such  destructive  instruments  as 
are  likely  to  result  in  the  extermination  of  the  young  as  well  as 
the  mature  fish  is  as  clear  as  its  power  to  secure  to  its  citizens  as 
far  as  possible  a  supply  of  any  other  wholesome  food. 

The  main  and  only  real  difficulty  connected  with  the  act  in 
([ucstion  is  in  its  declaration  that  any  net,  etc.,  maintained  in 
violation  of  any  law  for  the  protection  of  fisheries  is  to  be  treated 
;\s  a  public  nuisance  "and  may  be  abated  and  summarily  iles- 
troyed  by  any  person,  and  it  shall  be  tlie  duty  of  each  and  everv 
protector  aforesaid  and  every  game  constable  to  seize,  remove, 
and  forthwith  destroy  the  same."  Tiie  legislature,  however, 
undoubtedly  possessed  the  power,  not  only  to  prohibit  fishing  by 
nets  in  these  waters,  but  to  make  it  a  criminal  offense,  and  to 
take  such  measures  as  were  reasonable  .and  necessary  to  prevent 
such  offenses  in  the  future.  It  certainly  could  not  do  this  more 
effectually  than  by  destroying  the  means  of  the  offense.  If  the 
nets  were  being  used  in  a  manner  detrimental  to  the  interests  of 
the  public,  we  think  it  was  within  the  power  of  the  legislature 
to  declare  them  to  be  nuisances  and  to  authorize  the  officers  of 
the  state  to  abate  them.  Hart  v.  Albany,  9  Wend.  571,  24  Am. 
Dec.  165;  Meeker  v.  Van  Rensselaer,  15  Wend.  397.  An  act 
of  the  legislature  which  has  for  its  object  the  preservation  of  the 
public  interests  against  the  illegal  depredations  of  private  indi- 
viduals ought  to  be  sustained  unless  it  is  plainly  violative  of  the 
constitution  or  subversive  of  private  rights.  In  this  case  there  can 
he  no  doubt  of  the  right  of  the  legislature  to  authorize  judicial 
proceedings  to  be  taken  for  the  condemnation  of  the  nets  in 
(piestion,  and  their  sale  or  destruction  by  process  of  law.  Con- 
;,Mess  has  assumed  this  power  in  a  large  number  of  cases,  bv 
authorizing  the  condemnation  of  property  which  has  been  made 
n:^e  of  for  the  purpose  of  defrauding  the  revenue.     Examples 


56       L.M.TAT.ONS  TO  OWSKUSUU.  OK    .>KUSONAK  PROI-EUTV. 

Of  this  are  ve.sds  ilk-ally  re,/,stcrcd  or  owned  or  emrloyc.l 
i„  s,m,.n.rmj,   or  other   illegal    trallk;  disliller.es  or  brcwera^ 
U-alircarncd  on  or  operated,  a.ul  huildir>,B  sta..d,-.fj  upon  or 
nea;  the  boundary  line  between  the  United  States  and  another 
country  and  u^cd  for  depots  for  smn-lin^^  ^^oods      In  all  thes. 
"L,  however,  the  forfeiture  was  decreed   by  jud.cud  proceed- 
i,,.      But  where  the  property  is  of  little   value    and  .ts   use  fo. 
tl.:  illegal  purpose  is  elear.  the  legislature  may  dec  are  it  to  be 
,  nuisance    and  subject  to  summary  abatement        nstances  o, 
this  are  the   power  to  kill  diseased  cattle;  to  pull  dow.,  houses 
in  the  path  of  condaorations ;  destruction   of   decayed  fru.t  or 
nsh  or  nnvholesome  meats,  of  infected  clothu.g  of  obscene  books 
pictures,  or  instruments  which  can   be  used    for   dlegal  pur- 
"!  c's      While  the  legislature  has  no  right  arbitrardy  to  declare 
l,itt;    be  a  nuisance    which    is   clearly  not   -^    ^   goo^.   ^^f 
nust  be  left  to  its  discretion  in  that  regard,  and  ,f  the  object  ... 
bV.ccompli.hed    is  conducive  to  the    public   nrterests    .t    may 
oKercise  a  large  liberty  of  choice  in  the  means  employed,   ^e^^- 
w  VS    O     II    C.  R.  Co.  V.  Hunt,  50  N-  J-  L.  308;  Bla..er 
::\^li;;,  xo  nun,  435;  mouses  case,  ..  Cok.,  6.;  Ston.  v. 
New  Yoi'k,  .5  NVend.  173  ;  American  Print  Works  v.  Law.encc. 
;i  N.  J.  L.  24S,  .3  N-  J-  L-  590^  57  A"^-  1^^'^-  42"- 

It  is  not  easy  to  draw  the  line  between  cases  where  property 
Hlcoallv  used  may  be  destroyed  summarily  and  where    judical 
'■o'^eedings  are  necessary  for  its  condemnation.   If  tne  propertv 
ere  of  ^nxat  value,  as.  for  instance,  if  it  were  a  vessel  employed 
,r  smu-^gling  or  other  illegal  purposes,  it  would  be   puttmg  a 
ngTrofs  po^er  in  the  hands  of  a  custom  officer  to  permit  hnn 
o  sdl  or  destroy  it  as  a  public  nuisance  and  the  owner  yvould 
L-c  good  reason  to  complain  of  such  act  as  depriving  h.m  ot 
L  pn>pevty  without  due  process  of  law.  But  when  he  prope  U 
is  o   tr  fling  value  and  its  destruction  is  necessary  to  effect  the 
obttof    a  certain  statute,  we  think    it  is  within  U.e  power  of 
Th    legislature  to  order  its  summary  abatement      For  instance 
the  leoislature  should  prohibit  the  killing  of  fish  by  explosive 
Ihells  and  should  order  the  cartridges  so  used   to  be  destroyed. 
U  would  seem  like  belittling  the  dignity  of  the  judiciary  torequne 
Teh  destruction  to  be  preceded  by  a  solemn  condemnation  ,n  a 
court  of  justice.     The  same  remark  might  be   maoe   of  cards, 
chips,  and  dice  of  u  gambling  room. 


lOI'ERTV. 


I,A\VTO\    V.     STKrcr.E. 


57 


or  employed 

or  brcvveric-; 
^.M-ig  upon  or 
:s  and  another 
.     In  all  tliesi.' 
Jicial  proceeil- 
anil  its   use  for 
Icclare  it  to  l>c 
Instances  o'. 
11  down  houses 
jcayed  fruit  or 
f  obscene  books 
■or   illegal  pur- 
arily  to  declare 
i,    a   good    deal 

if  the  object  to 
nterests,  it  may 
mployed.  New- 
L.  30S ;  Blazier 
ke,  63  ;  Stone  v. 
rks  V.  Lawrence. 
:.  420. 

where  property 
i  where  judicial 
,   If  the  property 

vessel  employed 
aid  be   putting  a 
;er  to  permit  hiin 
he  owner  would 
depriving  him  ot 
when  the  property 
ssary  to  effect  the 
thin  the  power  ot 
It.     For  instance, 
t  fish  by  explosive 
1   to  be  destroyed, 
udiciaryto  requite 
condemnation  in  a 
e   made   of  cards, 


The  value  of  the  nets  in  questi'^n  wns  bn*-  '.\^li^  apiece.  The 
cost  of  condemning  one  (and  tiie  use  of  one  is  as  illegal  as  the 
u>e  of  a  dozen)  by  judicial  proceedings  would  largely  exceed 
the  value  of  the  net,  and  doubtless  the  stale  would  in  many  cases 
be  deterred  from  executing  the  law  by  the  expense.  Tney 
could  only  be  removed  fr(jm  the  water  with  difficulty  and  were 
liable  to  injury  in  the  process  of  removal.  Tlie  object  of  the  law 
is  undoubtedly  a  bt'neficent  one  antl  the  state  ouglit  not  to  I)e 
liampered  in  its  enforcement  by  the  application  of  constitutional 
l)rovisions  which  are  intended  for  the  protection  of  substantial 
rights  of  property.  It  is  evident  that  the  efficacy  of  this  statute 
would  be  very  seriously  impaired  by  requiring  every  net  illegally 
used  to  be  carefully  taken  from  the  water,  carried  before  a  court 
or  magistrate,  notice  of  the  seizure  to  be  given  by  publication, 
and  regular  judicial  proceedings  to  be  instituted  for  its  condem- 
nation. 

There  is  not  a  state  in  the  Union  which  has  not  a  constitu- 
tional provision  entitling  persons  charged  with  crime  to  a  trial 
i)V  jury  and  yet  from  time  immemorial  the  practice  has  been  to 
try  persons  charged  with  petty  offenses  before  a  police  magis- 
trate who  not  only  passes  upon  the  cjuestion  of  guilt  but  metes 
out  the  proper  punishment.  This  has  never  been  treated  as  an 
infraction  of  the  constitution,  though  technically  a  person  may 
in  this  way  be  deprived  of  his  liberty  without  the  intervention 
of  a  jury.  Callan  v.  Wilson,  127  U.  S.  540,  and  cases 
cited.  So  the  summary  abatement  of  nuisances  with  judicial 
process  or  proceeding  was  well  known  to  the  common  law,  long 
prior  to  the  adoption  of  the  constitution  and  it  has  never  been 
supposed  that  the  constitutional  provision  in  question  in  this  case 
was  intended  to  interfere  with  the  established  principles  in  that 
regard. 

Nor  is  a  person  whose  property  is  seized  under  «^he  act  in 
question  without  his  legal  remedy.  If  in  fact  his  property  has 
lieen  used  in  violation  of  the  act  he  has  no  just  reason  to  com- 
plain ;  if  not,  he  may  replevy  his  nets  from  the  officer  seizing 
them,  or,  if  they  have  been  destroyed,  may  have  his  action  for 
their  value.  In  such  cases  the  burden  would  be  upon  the  de- 
fendant to  prove  a  justification  under  the  statute.  As  was  said 
hy  the  supreme  court  of  New  Jersey  in  a  similar  case  (Ameri- 
can Print  Works  v.  Lawrence,  21   N.  J.  L.  24S,  259):     "The 


5S       LIMITATIONS  TO  OWNEUSIIU'  OK    PERSONAL  PUOl'LUTV. 

party  is  not  in  point  of  fact  deprived  of  a  trial  by  jury.  The 
evidence  necessary  to  sustain  the  defense  is  changed.  Even  if 
the  party  were  deprived  of  a  trial  by  jury  the  statute  is  Mot  there- 
fore necessarily  unconstitutional."  Indeed  it  is  scarcely  possible 
that  any  actual  injustice  could  be  done  in  the  practical  adminis- 
tration of  the  act. 

It    is   said,   however,   that    the    nets  are  not  in  themselves  a 
nuisance,  but  are  perfectly  lawful  acts  of   manufacture   and  arc 
ordinarily  used  for  a  lawful  purpose.     This  is,  however,  by  no 
means  a  conclusive  answer.      Many  articles,  such,  for  instance, 
as  cards,  dice,  and  other  articles  used  for  gambling  purposes  arc 
perfectly  harmless  in  themselves,  but  may  become  nuisances  by 
being  put  to  an  illegal  use,  and  in  such  cases  fall  within  the  ban 
of    the  law  and  may    be  summarily  destroyed.     It    is  true    that 
this  rule  docs  not  always  follow  from  the  illegal  use  of  a  harm- 
less article.     A  house  may  not    be  torn  down  because  it  is  put 
to  an  illegal  use,  since    it  may    be  as  readily  used   for  a  lawful 
purpose.      Ely  v.  Niagara  County  Suprs.,  36  N.  Y.  297.      But 
where  minor  articles  of  personal  property  are  devoted  to  such 
use,  the  fact  that  they  may  be  used  for  a  lawful  purpose  would 
not  deprive  the  legislature  of  the  power  to  destroy  them.     The 
power  of  the  legislature  to  declare  that  which  is  perfectly  inno- 
cent in  itself   to  be  unlawful   is  beyond   question.      People  v. 
West,  106  N.  Y.  393,  60  Am.  Rep.  452.     And  in  such  cases 
the  legislature  may  annex  to  the  prohibited  act  all  the  incidents 
of    a  criminal   offense   including    the    destruction    of  property 
denounced  by  it  as  a  public  nuisance. 

In  State  v.  Snover,  42  N.  J.  L,  341,  it  was  held  that  a  fish 
warden  for  a  county  appointed  by  the  governor  had  the  right 
under  an  act  of  the  legislature  to  enter  upon  land  and  destroy  a 
fish  basket  constructed  in  violation  of  the  statute  together  with 
the  materials  of  which  it  was  composed,  so  that  it  might  not 
again  be  used.  It  was  stated  in  that  case  that  "after  a  statute 
has  declared  an  invasion  of  a  public  right  to  be  a  nuisance  it 
may  be  abated  by  the  destruction  of  the  object  used  to  effect  it. 
The  person  who  with  actual  or  constructive  notice  of  the  law 
sets  up  such  nuisance  can  not  sue  the  officer  whose  duty  it  has 
been  made  by  the  statute  to  execute  its  provisions."  So  in  Wil- 
liams v.  Blackwall,  2  Hurlst.  &  C.  33,  the  right  to  take  posses- 
sion of  or  destroy  any  engine   placed  or  used  for  catching   sal- 


I'Kurv, 


PHOVIDENCE    HANK    V.    IIII.I.INGS. 


51> 


jury.  The 
[1.      Even  if 

is  Mot  thcrc- 
;ely  possible 
cal  iuiminis- 

hcmsclves  a 
lire  ami  are 
vever,  by  no 
for  instance, 
purposes  are 
nuisances  by 
ithin  the  ban 

is  true  that 
ic  of  a  harm- 
luse  it  is  put 

for  a  lawful 
'.  297.  But 
oted  to  such 
irpose  would 

them.     The 

erfectly  inno- 

People  V. 

in  such  cases 

the  incidents 

of  property 

d  that  a  fish 
bad  the    right 
and  destroy  a 
together  with 
it  might  not 
after  a  statute 
a  nuisance  it 
ed  to  effect  it. 
;ice  of  the  law 
Dse  duty  it  has 
,"     SoinWil- 
;o  take  posses- 
catching   sal- 


mon in  contravention  of  law  was  held  to  extend  to  all  persons 
;mil  was  not  limited  to  conservators  or  oflicers  appointed  under 
till.'  act. 

It  is  true  there  are  several  cases  of  a  contrary  purport. 
Some  of  these  cases,  however,  maybe  explained  upon  the  ground 
tiiiit  the  property  seized  was  of  considerable  value.  (leck  v. 
Anderson,  57  Cal.  251,  40  Am.  Rep.  115,  boats  as  well  as  nets; 
i)iinn  V.  Burleigh,  62  Me.  24,  teams  and  supplies  in  lumbering; 
King  V.  Haves,  So  Me.  206,  a  horse.)  In  others  the  court  seems 
to  liave  taken  a  more  technical  view  of  the  law  than  the  neces- 
sities of  the  case  or  an  adequate  protection  of  the  owner  required. 
I.owry  V.  Rainwater,  70  Mo.  153,  35  Am.  Rep.  420;  vState  v. 
Itobbins,  124  Ind.  308;  Ridgeway  v.  West,  60  Ind.  371. 

Upon  the  whole  we  agree  that  the  court  of  appeals  in  hold- 
ing this  act  to  be  constitutional,  and  the  judgment  of  the  supreme 
court  is,  therefore,  affirmed. 

CoNsi'LT — Stevens  v.  .State,  2  Ark.  291,35  Am.  Dec.  73;  Stone  v. 
Mississippi,  loi  U.  S.  814;  Butchers,  etc.,  Co.  v.  Crescent  Co.,  iiiU.S. 
741 ;  Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659;  State  v.  Yopp,  97  N.  C. 
477,  2  Am.  St.  Rep.  305;  State  v.  Ah  Chew,  16  Nev.  50,  40  Am.  Rep.  488; 
.Steiner  v.  Rav,  S4  Ala.  93,  5  Am.  St.  Rep.  332 ;  Beer  Co.  v.  Massachusetts, 
99  U.  S.  25;  Eichenlaub  v.  St.  Joseph,  113  Mo.  395;  Blair  v.  Forehand, 
ii>j  Miss.  136,  I  Am.  Rep.  94.  ^ 


§  13.    Same— The  taxing  power  of  the  state. 

PROVIDENCE  BANK  v.  BILLINGS. 

[4  Pet.  560.] 

Supreme  Court  of  the  United  States,  i8jo, 

Mr.  Chief  Justice  Marshall:  • 

This  is  a  writ  of  error  to  a  judgment  rendered  in  the  highest 
court  for  the  state  of  Rhode  Island  in  an  action  of  trespass 
brought  by  the  plaintiff  in  error  against  the  defendant. 

In  November,  1791,  the  legislature  of  Rhode  Island  granted 
a  charter  of  incorporation  to  certain  individuals  who  had  asso- 
ciated themselves  together  for  the  purpose  of  forming  a  banking 
coinpany.     They  are  incorp  lated  by  the  name  of  "The  Presi- 


•r-^iw^i  .■'■it'l^-'-.-^riV-" 


6o     I.1MH  A  iKiNs  TO  owM.nsmr  of   matsoNAi.  pkoimcutv. 

(lent,  Directors,  and  Company  of  tlic  I'rovick-ncc  Hank"  anil 
liave  Xhv  ordinary  powers  vvliich  are  supposed  to  be  necessary 
i'or  the  nsnal  olijeets  ol  such  associations. 

In  iS2i  the  ie^'islature  of  Rhode  Island  passed  "an  act 
imposinj^  a  dutv  on  licensed  persons  and  others  anil  liodies  cor- 
jiorate  within  the  state"  in  which  among  other  things  it  i~ 
enacted  (hat  there  shall  he  paid  for  the  use  of  the  state  by  each 
and  every  bank  within  the  state,  except  the  Bank  of  the  United 
States,  the  sum  of  fifty  cents  on  each  and  every  thousand  dollar- 
of  the  capital  stock  actually  paid  in."  This  tax  was  afterward 
augmented  to  one  dollar  and   twenty-five  cents. 

The  Providence  Hank  having  determined  to  resist  the  pa\- 
ment  of  this  tax  brought  an  action  of  trespass  against  the  otlicers 
by  whom  a  warrant  of  distress  was  issued  against  and  served 
upon  the  property  of  the  bank  in  pursuance  of  the  law.  The 
defendants  justify  the  taking  set  out  in  the  declaration  under  the 
act  of  assembling  imposing  the  tax,  to  which  plea  the  plaintiffs 
demur  and  assign  for  cause  of  demurrer  that  the  act  is  repug- 
nant to  the  constitution  of  the  United  States,  inasmuch  as  it 
impairs  the  obligation  of  the  contract  created  by  their  charter 
of  incorporation.  Judgment  was  given  by  the  court  of  common 
pleas  in  favor  of  the  defendants;  which  judgment  was  on  appeal 
confirmed  by  the  supreme  judicial  court  of  the  state.  The 
judgment  has  been  brought  before  this  court  by  a  writ  of 
error. 

It  has  been  settled  that  a  contract  entered  into  between  a 
state  and  an  individual  is  as  fully  protected  by  the  tenth  section 
of  the  first  article  of  the  constitution  as  a  contract  between  two 
individuals,  and  it  is  not  denied  that  a  charter  incorporating  a 
bank  is  a  contract.  Is  this  contract  impaired  by  taxing  the  banks 
of  the  state? 

This  quesiion  is  to  be  answered  by  the  charter  itself. 
It  contains  no  stipulation  promising  exemption  from  taxation. 
The  state,  then,  has  made  no  express  contract  which  has  been 
impaired  by  the  act  of  which  the  plaintiffs  complain.  No 
words  have  been  found  in  the  charter  which  in  themselves 
would  justify  the  opinion  that  the  power  of  taxation  was  in  the 
view  of  either  of  the  parties,  and  that  an  exemption  of  it  was 
intended,  though  not  expressed.  The  plaintiffs  find  great  diffi- 
culty in  showing  that  the  charter  contains  a  promise,  either 


IIOI'EHTV. 


ritnVIDENCR    BANK   V.    riM.i.iNr.s. 


6i 


cv  l?ank"  ami 
J    be  necessary 

iisscd  "an  act 
iiul  liodics  cor- 
L-r  tliin<^s  it  is 
c  state  by  cacli 
k  of  tlio  United 
lousaiid  dollars 
was  afterward 

»  resist  the  pay- 
inst  the  otlicers 
inst  and    served 

the  law.  The 
ation  under  the 
ea  the  plaintiffs 
le  act  is   repug- 

inasmiich  as  it 
by  their  charter 
3urt  of  common 
it  was  on  appeal 
he  state.  The 
t  by    a  writ   of 

into  between  a 
he  tenth  section 
ict  between  two 

incorporating  a 
taxing  the  banks 

;r  itself. 

n  from  taxation. 

which  has  been 

complain.  No 
b  in  themselves 
;ation  was  in  the 
iption  of  it  was 
s  find  great  diffi- 

promise,  either 


(sprcss  or  implied,  not  to  tax  the  bank.  The  elaborate  and 
ingenious  argument  which  has  been  urged  amounts  in  substance 
to  this:  The  charter  authorizes  the  bank  to  emjjloy  its  capital 
in  hanking  transactions  for  the  benefit  of  the  stockholders.  It 
hinds  the  state  to  permit  these  transactions  for  this  ol>ject.  Any 
law  arresting  directly  the  operations  of  the  bank  would  violate 
this  obligation  and  would  come  within  the  ]Mohibition  of  the 
touslitution.  I5ut  as  that  can  not  be  done  circiiitously  which 
may  not  be  done  directly,  the  charter  restrains  the  stale  from 
passing  any  act  which  may  indirectly  destroy  the  prolits  of  the 
hank.  A  posver  to  tax  the  state  may  uiuiuestionably  be  carried 
to  such  an  excess  as  to  take  all  its  prolits  and  still  more  than 
its  profits  for  the  use  of  the  state,  and  conseciuently  destroy  the 
institution.  Now  whatever  may  be  the  rule  of  expediency,  the 
constitutionality  of  a  measure  depends  not  on  the  degree  of  its 
exercise,  but  on  its  principle.  A  power,  therefore,  which  may 
in  effect  destroy  its  charter  is  inconsistent  with  it  and  is  impliedly 
renounced  by  granting  it.  Such  a  power  can  not  be  exercised 
without  impairing  the  obligation  of  the  contract.  When  pushed 
to  its  extreme  point  or  exercised  in  moderation  it  is  the  same 
power  and  is  hostile  to  the  rights  granted  by  the  charter.  This 
is  substantially  the  argument  for  the  bank.  The  plaintiffs  cite 
and  rely  on  several  sentiments  expressed  on  various  occasions 
bv  this  court  in  support  of  these  positions. 

The  claim  of  the  Providence  Bank  is  certainly  of  the  first 
impression.  The  power  of  taxing  moneyed  corporations  has 
l)een  frequently  exercised  and  has  never  before,  so  far  as  is 
known,  been  resisted.  Its  novelty,  however,  furnishes  no  con- 
clusive argument  against  it. 

That  the  taxing  power  is  of  vital  importance ;  that  it  is 
ossenliid  to  the  existence  of  government,  are  truths  which  it 
can  not  be  necessary  to  reaffirm.  They  are  acknowledged  and 
asserted  by  all.  It  would  seem  that  the  relinquishment  of  such 
a  power  is  never  to  be  assumed.  We  will  not  say  that  a  state 
may  not  relinquish  it,  that  a  consideration  suiliciently  valuable 
to  induce  a  partial  release  of  it  may  not  exist;  but  as  the  whole 
community  is  interested  in  retaining  it  undiminished,  that 
community  has  a  right  to  insist  that  its  abandonment  ought  not 
to  be  presumed  in  a  case  in  which  the  deliberate  purpose  of 
the  state  to  abandon  it  does  not  appear. 


C:     MMi  I  ATioNs  TO  ownkhsiiip  <>i-  rKusoNAi,  nioriciirv. 

Tlic  plaintiffs  would  Rive  to  tliis  charter  the  same  coiislriu- 
tion  as  if  it  cuiitaiiiecl  a  clause  exemptiii},'  tlu-  bank  from  tax.i- 
tion  on  its  stock  in  trade.     But  can  it  be  supposed  that  such    i 
clause  would  not  cnlar{,'c  its  privilc.ues?     They  euntend   that    i 
must  he  implied,  because  the  power  to  tax  may  be  so  wiekK  1 
;is  to  defeat  the   purpose   for  which   the   charter    was  granted. 
And  may  not  this  be  said  with  equal   truth   of  other  lef,'islati\r 
powers:     Does    it   not  also   apply  with  ccpial    force   to   eveiv 
iiicovi)orated  company?     A  company  may  he  incorporated  for 
the  purpose  of  trading  in  goods  as   well   as  trading  in   money. 
If  tlie  policy  of  the  stale  should  lead  to  the   imposition  of  a  tax 
on  unincorporated  companies,  could  those  which  might  be  incor- 
porated claim  an  exemption  in  virtue  of  a  charter  winch  does 
not  indicate  such  an  intention.'     The  time  may  come  when  a 
duty   may   be   imposed   on   manufacturer.s.     Would    an  incor- 
porated company  be  exempted  from  this  duty  as  the  mere  con- 
.sequencc  of  its  charter.' 

The  "-real  object  of  an  incorporation  is  to  bestow  the  charter 
and  properties  of  individuality  on  a  collective  and  changin- 
body  of  men.  This  capacity  is  always  given  to  such  a  body. 
Any  privileges  which  may  exempt  it  from  the  burthens  common 
to  individuals  do  not  flow  necessarily  from  the  charter,  but 
must  be  expressed  in  it,  or  they  do  not  exist. 

If  the  power  of  taxation  is  inconsistent  with  the  charter 
because  it  may  be  so  exerciseC  as  to  destroy  the  object  for 
which  the  charter  is  given,  it  is  equally  inconsistent  with  every 
other  charter,  because  it  is  equally  capable  of  working  the 
destruction  of  the  objects  for  which  every  other  charter  is  given. 
If  the  grant  of  a  power  to  trade  in  money  to  a  given  amount 
implies  an  exemption  of  the  stock  in  trade  from  taxation  because 
the  tax  may  absorb  all  the  profits,  then  the  grant  of  any  other 
thing  implies  the  same  exemption ;  for  that  thing  may  be  taxed 
to  an  extent  which  will   render   it  totally   unprofitable  to  the 

grantee. 

Land,  for  example,  has  in  many,  perhaps  in  all  the  .states, 
been  granted  by  government  since  the  adoption  of  the  constitu- 
tion. This  grant  is  a  contract,  the  object  of  which  is  that  the 
profits  issuing  from  it  shall  inure  to  the  benefit  of  the  grantee. 
Yet  the  power  of  taxation  may  be  carried  so  far  as  to  absorl) 
these  profits.     Does  this  impair  the  obligation  of  the  contract.' 


•ROI'KRIV. 


pnovinENCK  n.WK  v.  nii.i.iNr.s. 


^3 


same  coiistiiu- 
iink  from  taxa- 
icd  tliat  such  i 
coiitciul   tliat   ii 

he  so  wiolili  1 
r  was  granted. 
)tlicr  le{;islati\r 

ff)rce  to  evi'iA 
incorporated  for 
ding  in  money, 
position  of  a  tax 
1  might  be  iiicor- 
rter  wliicii  doe^ 
y  come  vvlien  a 
r'ould  an  incor- 
is  the  mere  con- 
stow  the  charter 
e    and  ciiangin',' 

to  such  a  l)oily, 
urthens  common 
the   charter,    but 

vith  the  charter 
oy  the  object  for 
istent  with  every 
of  working  the 
r  charter  is  given. 
)  a  given  amount 
1  taxation  because 
ant  of  any  other 
ing  may  be  taxed 
iprofitable  to  the 

in  all  the  .states, 
in  of  the  constitu- 
which  is  that  the 
fit  of  the  grantee, 
far  as  to  absorb 
I  of  the  contract.' 


riie  idea  is  rejected  by  all;  and  the  proposition  appears  so 
iNlravagant  that  it  is  dillicult  to  admit  any  resemblance  in  the 
i:isc<..  And  yet  if  the  proposition  for  which  the  plaintiffs  cou- 
tiiuied  be  true  it  carries  us  to  this  point.  'I'hat  proposition  is 
that  a  power  wliich  is  in  itself  capable  of  being  exerted  to  the 
total  destruction  of  the  grant,  is  inconsistent  with  the  grant; 
and  is.  therefore,  impliedly  reliiuiuished  by  the  grantor  though 
the  language  of  the  instrument  contains  no  allusion  to  the  sub- 
ject. If  this  lie  an  abstract  truth  it  may  be  supposed  universal, 
lint  it  is  not  universal  and,  therefore,  its  truth  can  not  be 
admitted  in  these  broad  terms  in  any  case.  We  must  look  for 
the  exemption  in  the  language  of  the  instrument;  and  if  we  do 
not  find  it  there  it  would  be  going  very  far  to  insert  it  by 
construction. 

The  power  of  legislation  and  consequently  of  taxation  oper- 
ates on    all   the   persons   and   property  belonging  to  the  body 
t)ulitic.     This  is  an  original  principle  which  has  its  foundation 
in  society  itself.     It  is  granted  by  all  for  the  benefit  of  all.     It 
resides  in  government  as  a  part  of  itself  and  need  not  be  reserved 
when  property  of  any  description  or  the  right  to  use  it  in  any 
manner  is  granted  to  individuals  or  corporate  bodies.     However 
absolute  the  right  of  an   individual   may  be   it  is   still  in  the 
nature   of   that  right  that  it  must  bear  a  portion  of  the  public 
luirdens,  and  that  portion  must  be  determined  by  the  legislature. 
Tills  vital  power  may  be  abused ;  but  the   constitution   of  the 
United  States  was  not  intended   to   furnish   the   corrective   for 
every  abuse  of  power  which   may  be  committed  by  the  state 
governments.     The  interest,  wisdom,  antj  justice  of  the  repre- 
sentative body,  and  its  relations  with   its  constituents,  furnish 
the  only   security  where   there   is  no  express  contract  against 
unjust  and  excessive  taxation,  as  well  as  against  unwise  legisla- 
tion generally.     This  p'-iucipic  was  laid  down  in   the   case  of 
M'CuUoch  V.  State,  4  Wheat.  316,   and  in   0.sborn  v.  Bank, 
y    Wheat.    738.       Both   these   cases,  we   think,    proceeded  on 
the  admission  that  an  incorporated  bank,  unless  its  charter  shall 
express  the  exemption,  is  no  more  exempted  from  taxation  than 
an  unincorporated  company  would   be   carrying  on   the  same 

business. 

The    case   of  Fletcher  v.  Peck  has   been  cited ;  but    ip  that 
case  the  legislature  of  Georgia  passed  an  act  to  annul  its  grant. 


6\       i.lMIlATIOXS  TO  OWNERSHIP  OF    rEKSONAL  "ROI'EUTV. 

The  case  of  State  of  New  Jersey  v.  Wilson,  7  Craiv-h.  161. 
has  been  also  mentioned  ;  bnt  in  that  case  the  sroulatlon  exemp- 
ting the  huui  from  taxation  was  made  in  express  words. 

The  reasonin;^  of    the  court    in   the  case    of    M'CuUoch  v. 
State  has  l)een  applied  to  this  case,  but  the  court  itself  appears 
to  have  provided  acjainst  this  application.     Its  opinion  in    that 
case,  as  well  as  in  Osborn  v.  Hank,  was    founded  expressly  on 
the  supremacy  of  the  laws  of  congress  and  the  necesssary  con- 
se(,nence  of  that  supremacy  to  exempt  its  instruments  employed 
in  the  ixccution  of  its  powers  from  the  operation  of  any  inter- 
ftring  power  whatever.     In  leasoning  on  the  argument  that  the 
pov.er  of  taxation  wa-^  not  confined  to  the  people  and  property 
of  a  state,  but  might  be  exercised  on  every  object  brought  within 
its  jurisdiction,  this  court  admitted  the  truth  of  the  proposition; 
and  added  that  the  powei   was   an    'nc' .lent  of  sovereignty   am! 
was  coextensive  with  that    to    which  it    was  an  incident.     All 
powers,  the  court  said,  over  which  the  sovereign  pcvver  of  a  state 
extends  are  subjects  of  taxation.     The  sovereignty   of   a   state 
extends  to  everything    which  exists    by  its  own    authority  or  i< 
introduced  by  its  permission  ;  but  does  it  extend  to  those  means 
which  are  employed  by  congress  to  carry  into  execution  powers 
conferred  on  that  body  by  the  people  of  the  United  States.'  We 

think  not. 

So  in  the  case  of  Osborn  v.  Bank,  the  court  said,  "the 
argument"  in  favor  of  the  right  of  the  state  to  tax  the  bank 
"supposes  the  corporation  to  have  been  originated  for  the 
management  of  an  individual  concern,  to  be  founded  upon  con- 
tract between  individuals,  having  private  trade  and  private 
profit  for  its  great  end  and  principal  object. 

If  these  premises  were  true  the  conclusion  drawn  from  them 
would  be  inevitable.  This  mere  private  corporation  engaged 
in  its  ov.n  business  would  certainly  be  subject  to  the  taxing 
power  of  the  state  as  any  individual  would  be." 

The  rourt  was  certainly  not  discussing  Hie  question  whether 
a  tax  imposed  by  a  state  on  a  bank  chartered  by  itself  in.^jaircd 
the  obligation  01  its  contract  and  these  opinions  are  not  conclu- 
sive as  they  would  be  had  they  been  delivered  in  such  a  case, 
but  they  show  that  the  question  was  not  considered  as  doubtful, 
and  that  inferences  drawn  -rom  general  expressions  pointed  to 
a  different  subject  can  not  be  coritttly  drawn. 


i^ma 


itaBBnaft 


iB 


AT.  "norEUTY. 


WEST    UI\f:K    ISKIDGK    CO.     V.     VIS. 


an,  7   Craiv-h.  164, 
si'ouh'.tlon  excmp- 
ircss  words. 

of  M'CulIoch  V. 
court  itself  iippears 
Its  opinion  in  tli;it 
uinded  expressly  on 
the  neccsssary  coii- 
itruinents  employed 
ration  of  any  intir- 
c  arsinTienl  that  the 
eople  and  property 
jject  brought  within 
of  the  proposition ; 
of  sovereignty  and 
s  an  incident.  All 
;ign  pLVverof  a  state 
ereignty  of  a  state 
Dwn  authority  or  !< 
tend  to  those  means 
to  execution  powers 
United  States.?  We 

le    court    said,   "the 
ate  to   tax  the   bank 
originated    for   the 
e  founded  upon  con- 
trade    and   private 

n  drawn  from  them 
:orporation  engaged 
ibject  to  the  taxing 
be." 

the  qiipstion  whether 
cd  by  itself  in.^jaired 
nions  are  not  conchi- 
ered  in  such  a  case, 
iisidered  as  doubtfnl, 
;pressions  pointed  to 
wn. 


\Vc  have  rcUcctcd  seriously  on  this  case;  are  of  opinion  that 
the  act  of  the  legislature  of  Rhode  Island  passed  in  1S22  impos- 
ing a  duty  on  licensed  persons  and  others  and  bodies  corpoiate 
within  the  state,  does  not  impair  the  obligation  of  the  contract 
created  by  the  charter  granted  to  the  plaintiffs  in  error.  It  is 
tiierefore  the  oi)inion  of  this  court  that  there  is  no  error  in  the 
juilgment  of  the  supreme  judicial  court  for  the  state  of  Rhode 
Island  atHrming  th  judgment  of  the  circuit  court  in  this  case, 
and  the  same  is  aiHrmed ;  and  the  cause  is  remanded  to  the  said 
snpremo  judicial  court  that  its  judgment  may  be  finally 
entered. 

CoN-siLT— McCulloch  V.  Maryland,  4  Wheat.  316;  Kirtland  v. 
Ilotchki.ss,  100  U.  S.  491;  People  v.  Brooklyn,  4  N.  Y.  419,  55  Am. 
Dec.  266;  Tavlor  v.  I'al'-ier.  31  Cal.  240;  State  v.  Newark,  26  N.  b  L.  519: 
U"illiam.s  v.  Cammack,  27  Miss.  209,  61  .\ni.  Dec.  508;  Hannibal,  etc..  R. 
Co.  V.  .State  IJoard,  (.4  Mo.  294;  North  '^  R.  Co.  v.  Wagner,  49  Mo. 
490.  Rut  tax  must  lie  for  a  "public"  purpose  Allen  v.  Jay,  60  Me.  124,11 
.\ni.  Hep.  1S5  ;  Crowell  v.  llopkington,  45  N.  H.  9;  Tyson  v.  School  Di- 
rectors, 51  Pa.  St. 9;  Att'y  Gen'l  v.  Eau  Claire,  37  Wis.  400;  Lowell  y.  Bos- 
tun,  III  Mass.  454,  i^  Am.  Rep.  39;  State  v.  Osawkee,  14  Kan.  41S,  19 
Am.  Rep.  97;  Loan  Association  v.  Topeka.  20  Wall.  635. 


§  14.    Same— The  power  of  eminent  domain. 

WEST  RIVER  BRIDGE  CO.  v.  DIX. 

[6  How.  509.] 

Si/prciiic  Corrt  of  the  L'nitcd  States,  1848. 

Mr.  Justice  Dan:el. — These  cases  are  brought  before  us 
under  the  twenty-fifth  section  of  the  Judiciarv  Act  in  order  to 
test  the  conformity  with  the  constitution  of  the  United  States  of 
certain  statutes  of  Vermont;  laws  that  have  been  sustained  bv 
ihe  supreme  court  of  Vermont,  but  which  it  is  alleged  are 
rt  pugnant  to  the  tenth  section  of  the  first  article  of  the  constitu- 
lion,  prohibiting  the  passage  of  state  laws  impairing  the  obliga- 
tion of  contracts. 

It  appears  from  the  records  of  these  causes  that  m  the  year 
1795  the    plaintiffs    in  error  were,    by  act  of   the  legislature  of 


MM 


iii» 


66      LIMITATIONS  TO  OWNERSHIP  OF    PERSONAL  PROPERTY. 

Vermont,  created  a  corporation  and  vested  with  the  exclusive 
privilege  of  erecting  a  bridge  over  West  River  within  four  miles 
of  its  mouth,  and  with  the  right  of  taking  tolls  for  passing  the 
same.  The  franchise  granted  this  corporation  was  to  continue 
for  one  hundred  years  and  the  period  originally  prescribed  for 
its  duration  has  not  yet  expired.  The  corpor.ition  erected  their 
bridge,  have  maintained  and  used  it,  and  enjoyed  the  franchise 
granted  to  them  by  law  until  the  institution  of  the  proceeding 
now  under  review. 

By  the  general  law  of  Vermont  relating  to  roads,  passed 
nineteenth  November,  1S39  (vide  Revised  '  aws  of  Vermont, 
p.  553),  the  county  courts  are  authorized  upon  petition  to 
appoint  commissioners  to  lay  out  highways  within  their  respec- 
tive counties,  and  to  assess  the  damages  which  may  accrue  to 
land  holders  by  the  opening  of  roads,  and  these  courts,  upon 
the  reports  of  the  commissioners  so  appointed  are  empowered 
to  establish  roads  within  the  bounds  of  their  local  jurisdiction. 
A  similar  power  is  vested  in  the  supreme  court  to  lay  out  and 
establish  highways  extending  through  several  counties. 

By  an   act  of  the  legislature  of  Vermont  passed  November 
19,  1S39,  it  is  declared  ^hat,  "whenever  there  shall  be  occasion 
for  any  new  highway  in  any  town  or   towns,  of   this  state,  the 
supreme  and  county  courts  shall  have  the  same  power   to  take 
any  real  estate,  easement,  or  franchise  of  any  turnpike  or  other 
corporation,  when  in  their  judgment  the  public  good  requires  a 
public  highway,  which  such  courts  now  have,  by  the  laws  of  the 
state,  to  lay  out  highways  over  individual  or  priv.ite  property; 
and    the  same   power  is' granted,  and   the  same  rules  shall   be 
observed  in  making     ompensation  to  all  such  corporations  and 
persons,  whose   estate,  easement,  franchise,  or  rights  shall  be 
taken  as  are  now  granted,  and  provided  in  other  cases.  "Urder 
the  authority  of  these  statutes  and  in  the  modes  therein  prescribed, 
a  proceeding  was  instituted   in  the  county   court  of  Windham, 
upon  the  petition  of  Joseph  Dix  and  others,  in    which,  by  the 
judgment  of  that  court,  a  public  road  was  extended  and  estab- 
lished betwen  certain  tcnnmi,  passing  over  and  upon  the  bridge 
of  the  plaintiffs,  and  converting  it  into  a  free,  public  highway. 
By  the  proceedings  and  judgment  just  mentioned  compensation 
was  assessed  and  awarded  to  the  plaintiffs  for  this  appropriation 
of  their  property  anc  .or  the  consequent  extinguishment  of  their 


iHfifll 


mm 


lOl'ERTY. 


WEST    RIVER    RRIDGE    CO.    V.    DIX. 


67 


the  exclusive 
hin  four  miles 
)r  passing  the 
IS  to  continue 
prescribed  for 
1  erected  their 
I  the  franchise 
le   proceeding 

roads,   passed 

of  Vermont, 
in  petition  to 
1  their  respec- 
may  accrue  to 
i  courts,  upon 
re  empowered 
il  jurisdiction. 
to  lay  out  and 
nties. 

sed  November 
all  be  occasion 

this  state,  the 
power  to  take 
rnpike  or  other 
rood  requires  a 
the  laws  of  the 
vate  property ; 

rules  shall  be 
Drporations  and 
rights  shall  be 

cases.  "Urdti- 
rein  prescribed, 
t  of  Windham, 
1  which,  by  the 
ided  and  estab- 
upon  the  bridge 
)ublic  highway, 
d  compensation 
is  appropriation 
ishmeat  of  their 


fnmchise.      The  judgment  of  the  county  court  having  been  en- 
ried  l)y  certiorari  before  the  supreme  court  of   the    state,  was 
i.v  the  latter  tribunal  affirmed. 

['ending  the  proceedings  at  law  upon  the  petition  of  Dix 
and  others,  a  bill  was  presented  by  the  plaintiffs  in  error  to  the 
chancellor  of  the  first  judicial  circuit  of  the  state  of  Vermont, 
praying  an  inj.unction  to  those  proceedings,  so  far  as  they  related 
to  the  plaintiffs  or  to  the  real  estate,  easement,  or  franchise 
belonging  to  them.  This  bill  having  been  demurred  to,  was 
dismissed  by  the  -'ancellor  whose  decree  was  affirmed  on 
appeal  to  tli(  sup  me  court  and  a  writ  of  error  to  the  last 
decision  bring-  up  the  case  on  the  second  record. 

In    considering    the   question    propounded    in  these   causes, 
there  can  be  no  doubt,  nor  has  it  bren  doubted  in  argument  on 
cither  side  of  this  contro     1        that  the  charter  of  incorporation 
.granted  to  the  plaintiffs  in  1793,  with  the  rights  and  privileges 
it  declared  and  implied,  formed  contract  between  the  plaintiffs 
and  the  state  of  Vermont,  which  the  latter,  under  liie  inhibition 
ill  the  tenth  sectior  of.  ih'^  irst  article  of   the  constitution    could 
have  no  power  to  iii2p;:ii     Yet  this  proposition,  though  taken  as 
a  i)ostulate   on  both  sides,   determines  nothing   as   to   the  real 
merits    of    these    causes.     True,  it   furnishes    a    guide    to    our 
iiujuirics  yet    leaves  those  inquiries    still  open,  in    their    widest 
extent,  as  to  the  real  position  of  the  parties  with    reference  to 
the  state  legislation  or  to  the  constitution.    Following  the  guide 
thus  furnished  us  we  will    proceed  to    ascertain  that    position. 
No  state,  it  is  declared,  shall  pass  a  law  impairing  the  obligation 
of  contracts;  yet  with  this  concession  constantly  yielded,  it  can 
not  be  justly  disputed   that   in   every   political   sovereign  com- 
munity there  inheres  necessarily  the  right  and  the  duty  of  guard- 
in,'  its  own  existence  and  of  protecting  and  promoting  the  inter- 
.   l^  and  welfare  of  the  community  at  large.     This  power    and 
tiii-  duty  are  to  be  exerted  not  only  in  the   highest   act  of  sov- 
c'.ignty,  and   in  the   external   lelations  of  governments;    they 
n  ach  and  comprehend  likewise  the  interior  polity  and  relations 
ot  social  life,  which  should   be  regulated   with  reference  to  the 
advantage   of   the    whole    society.     This   power   denominated 
"eminent  domain"  of  the  state,  is,  as  its  name   imports,  para- 
mount to  all  private   right-^   vested    under  the  government,  and 
tliese  last  are  by  necessary  implication  held  in  subordination  to 


BHi 


tam 


mtm 


m 


6S       I.IMIl  ATIONS  TO  OWNEKSIIII'  OF    I'EHSONAL  I'ROlMillTV. 

this  power  and    must   yield,  in   every    instance,  to    its    proper 

exercise. 

The  constitution  of  the  United  States,  although  adopted  l.v 
the  soverei<,'n  states  of  this  Union,  and  proclaimed  in  its  own 
lansi;uage  to  he  the  supreme  law  for  their  government,  can  hy 
no  rational  interpretation  be  brought  to  conflict  with  this  attn- 
but'?  in  the  states  ;  there  is  no  express  delegation  of  it  by  the  con- 
stiti.ion;  and  it  would  imply  an  incredible  fatuity  in  the  stales, 
to  asciihe  to  them  the  intention  to  relinquish  the  power  of  self- 
government  and  self-preservation.  A  correct  view  of  this  mat- 
ter must  demonstrate  moreover  that  the  right  of  eminent 
domain  in  government  in  no  wise  interferes  with  the  inviola- 
bdity  of  contracts;  that  the  most  sanctimonious  regard  for  the 
one  is  perfectly  consistent  with  the  possession   and    exercise  ol 

the  other. 

Under  every  established  government  the  tenure  of  property 
is  derived  mediately  cr  immediately  from  the  sovereign  power 
of  the  political  body,  organized  in  such  mode  or  exerted  in  sucli 
way  as   the   community   or  state    may  have  thought  proper  to 
ordain.      It  can  rest  on  no  other  foundation,   can  have  no  other 
guarantee.     It    is   owing   ^o   tliese    characteristics   only    in   the 
original  nature  of  tenure,  that  appeals  can  be  made  to  the  laws 
either  for  the  protection  or  assertion    .f  the  rights  of  property. 
Upon  any  other  hypothesis  tlie  law  of  property  would  be  simply 
the  law  of  force.     Now  it  is  undeniable  that  the  investment  of 
property  in  the  citizens  by  the  government,  whether  made  for  a 
pecuniary  consideration   or  founded   on   conditions  of   civil  or 
political  duty,  is  a  contract  between  the  state  or  the  government 
actnig  as  its'agent  and  the  grantee  ;   and  both  the  parties  thereto 
are  bound  in  good    faith  to   fuliill    it.     But  into  all   contracts, 
^vhether  made  between  states  and  individuals  or  between  indi- 
viduals only,  there  enter  conditions  which  arise  not  out  of  the 
literal  terms  of  the  contract  itself;   they   are   superinduced  by 
the  preexisting  and  higher  authority  of  the  laws  of  nature,  or 
nations,  or  of  the  community  to  which  the  parties  belong;  they 
are  always  presumed  and  must  be  presumed  to  be  known  and 
recognized  by  all,  are  binding  upon  all,  and  need  never,  there- 
fore,  be   carried    into   express  stipulation,    for  this  could    add 
nothing  to  their  force.     Every  contract  is  made  in  subordina- 
tion to  them,   and   must  yield  to  their   control,   as   conditions 


Hhi 


lOlMiKTV, 


W.;ST    RIVER    HRIDGE    CO.     V.     PIX. 


69 


to    its    propcr 

^h  .idoptctl  by 
cd  in  its  own 
iimcnt,  can  by 
with  this  attri- 
>f  it  by  the  con- 
y  in  the  states, 
power  of  self- 
nv  of  this  niat- 
ht  of  eminent 
Lh  the  inviola- 
regard  for  the 
md   exercise  of 

re  of  property 
jvereign  power 
exerted  in  snch 
jnght  proper  to 
1  have  no  other 
cs   only    in   tlie 
ade  to  the  laws 
ts  of  property, 
vould  be  simply 
e  investment  of 
;ther  made  for  a 
ions  of   civil  or 
the  government 
le  parties  thereto 

0  all  contracts, 
)r  between  indi- 
;  not  out  of  the 
superinduced  by 
tS  of  nature,  of 
ies  belong ;  they 

1  be  known  and 
:ed  never,  there- 

this  could  add 
le  in  subordina- 
1,   as   conditions 


inherent  and  paramount,  whenever  a  necessity  for  their  cxecu- 
tidii  shall  occur.  Such  a  condition  is  the  right  of  eminent 
(Imnain.  1  his  right  does  not  operate  to  impair  the  contract 
iiilected  by  it,  but  recognizes  its  obligation  in  the  fullest  extent, 
claiming  only  the  fullillment  of  an  essential  and  inseparable 
contlition.  Thus  in  claiming  the  resumption  or  tiualitication  of 
an  investiture,  it  insists  merely  on  the  true  nature  and  character 
of  the  right  invested.  The  impairing  of  contracts  inhil)ited  by 
the  constitution  can  scarcely,  by  the  greatest  violence  of  con- 
struction, be  made  applicable  to  the  enforcing  of  the  terms  or 
necessary  import  of  a  contract ;  the  language  and  meaning  of 
the  inhibition  were  designed  to  embrace  proceedings  attempting 
the  interpolation  of  some  new  term  or  condition  foreign  to  the 
original  agreement  and  therefore  inconsistent  with  and  violative 
thereof.  It  then  being  clear  that  the  power  in  cjuestion  not 
being  within  the  purview  of  the  restriction  imposed  by  the  tenth 
section  of  the  first  article  of  the  constitution  it  remains  with  the 
st;,tes  to  the  full  extent  in  which  it  inheres  in  every  sovereign 
j^overument,  to  be  exercised  by  them  in  that  degree  that  shall 
hv  them  be  deemed  coinmensurate  with  public  necessity.  So 
long  as  they  shall  steer  clear  of  the  single  predicament  denounced 
bv  the  constitution,  shall  avoid  interference  with  the  obligation 
of  contracts,  the  wisdom,  the  modes,  the  policy,  che  hardship 
of  any  exertion  of  this  power  are  subjects  not  within  the  proper 
cognizance  of  this  court.  This  is  in  truth  purely  a  question  of 
power;  and  conceding  the  power  to  reside  in  the  state  govern- 
ment, this  concession  would  seem  to  close  the  door  upon  all 
further  controversy  in  connection  with  it.  The  instances  of 
the  exertion  of  this  power,  in  some  mode  or  other,  from  the 
very  foundation  of  civil  government,  have, been  so  numerous 
and  familiar  that  it  seems  somewhat  strange  at  this  day  to  raise 
a  doubt  or  question  concerning  it.  In  fact,  the  whole  policy  of 
the  country  relative  to  roads,  wells,  bridges,  and  canals,  rests 
upon  this  single  power  under  which  lands  have  been  always 
condemned  ;  and  without  the  exertion  of  this  power,  not  one  of 
the  improvements  just  mentioned  could  be  constructed.  In  our 
country  it  is  believed  that  the  power  was  never,  or  at  any  rate, 
rarely  questioned  until  the  opinion  seems  to  have  obtained  that 
thii  right  of  property  in  a  chartered  corporation  was  more  sacred 
and  intangible  than  the  same  right  could  possibly  be  in  the  per- 


^ 


70 


LIMITATIONS  TO  OWNERSHIP  OF    PERSONAL  PROPERTV, 


son  of   the    citizen ;     an    opinion   whicii   must   be  without   any 
grounds  to  rest  upon  until  it  can  be  demonstrated  that  the  ideal 
creature  is  more  than  a  person  or  the  corporeal  b.-ing  is  less. 
For  as  a  question  of  the  power  to  appropriate  to  public  uses 
the  property   of   private    persons,    resting    upon    the    ordiiiaiy 
foundations  of   private    right,    there   would    seem   to   be   room 
neither    for    doubt    nor    difficulty.     A    distmction    has    been 
attempted,  in  argument,   between  the  power  of  a  government 
to  appropriate  for  public  uses  property  which  is  corporeal,  or 
may  be  said  to  be  in  being,  and  the  like  power  in  the  govern- 
ment to  resume  or  extinguish  a  franchise.     The  distinction  thus 
p.ctempted  we  regard  as  a  refinement,  which  has  no  foundation 
in  reason,  and  one  that,  in  truth,  avoids  the  true  legal  or  con- 
stitutional question  in  these  causes ;   namely,   that  of  the  right 
in  private  persons  in  the  use  or  enjoyment  of  their  private  prop- 
erty, to  control  and  actually  to  prohibit  the  power  and  duty  of 
the  government  to  advance  and  protect  the  general  good.      We 
are  aware  of  nothing  peculiar  to  a  franchise  which  can  class  it 
higher  or  render  it  more  sacred  than  other  property.      A  fran- 
chise is  property  and  nothing  more;    it  is  incorporeal  property 
and  is  so  defined  by  Justice    Blackstone,   when   treating   in   hi; 
second  volume,  chapter  3,  page  20,  of  the  "Rights  of  Things." 
It  is  its  character  of   property  only  which  imparts  to   it  value 
and  alone  authorizes  in  individuals  a  right  of   action  for  inva- 
sions or  disturbances  of   its  enjoyment.     Vide  Bl.   Com.,  vol. 
Ill,  chap.  16,  p.  236,  as  to  injuries  to  this  description  of  private 
property  and  the  remedies  given  for  redressing  thein.      A  fran- 
chise, therefore,  to  erect  a  bridge,  to  construct  a  road,  to  keep 
a  ferry,  and  to  collect  tolls  upon  them,  granted  by  the  authority 
of  the  state,   we  regard   as  occupying  the  same  position  with 
respect  to  the  permanent  power  and  duty  of   the  state  to  pru- 
mote  and  protect  the  public  good,  as  does  the  right  of  the  citi- 
zen to  the  possession  and  enjoyment  of  his  land  under  his  patent 
or  contract  \vith  the  state,    and   it   can  no    more   interpose  any 
obstruction  in  the  way  of  their  just  exertion.     Such  exertion  we 
hold  to  be  not  within  the  inhibition  of  the  constitution  and  no 
violation  of  a  contract.     The  power  of  a  state  in  the  exercise 
of  eminent  domain  to  extinguish  immediately  a  franc. lise  it  had 
granted  appears  never  to  have  been   directly   brought  here  tor 
adjudication  and  consequently  has  not  been  heretofore  formally 


1 


V 


PROl'KRTV. 

30  without  any 
;d  that  the  ideal 
I  b.'iug  is  less, 

to  public  nsis 
M  the  ordinal  y 
;m  to  be  room 
tion  has  been 
f  a  government 
is  corporeal,  or 

in  the  govern- 
:  distinction  thus 
)  no  foundation 
ue  legal  or  con- 
lat  of  the  right 
eir  private  prop- 
ver  and  duty  of 
sral  good.  W'c 
ich  can  class  it 
pcrty.  A  fran- 
rporeal  property 

treating  in  hi; 
jhtsof  Things." 
arts  to  it  value 
action  for  inva- 
Bl.  Com.,  vol. 
iption  of  251'ivate 
thein.     A  fran- 

a  road,  to  keep 
by  the  authority 
le  position  with 
he  state  to  pm- 
•ight  of  the  citi- 

under  his  patent 
re  interpose  any 
Mich  exertion  we 
stitution  and  no 

in  the   exerci>e 

franCiiise  it  had 
)rought  here  foi' 
■etofore  formally 


WEST    RIVER    BRIDGE    CO.    V.    1)IX.  71 

propounded  from  this  court;  but  in  England,  this  power  to  the 
luUest  extent  was  recognized  in  the  case  of  Governor  v.  Mere- 
dith, 4  Term  Rep.  794,  and  Lord  Kenyon  especially  in  that 
case  founded  solely  upon  this  power  the  entire  policy  and 
authority  of  all  the  road  and  canal  laws  of  the  kingdom. 

The  several  state  decisions  cited  in  the  argument  from  3 
I'aige's  Ch.  45;  from  3  Pick.  361  ;  from  17  Conn.  398;  from 
10  N.  H.  20,  are  accordant  with  the  decision  above  mentioned, 
from  4  D.  (St  E.  and  entirely  supported  by  it.  One  of  tiiese 
state  decisions,  namely,  Enfield  Toil  Bridge  Co.  v.  R.  Co.,  17 
Conn.,  places  the  principle  asserted  in  an  attitude  so  striking  as 
seems  to  render  that  case  worthy  of  a  separate  notice.  The 
legislature  of  Connecticut  having  previously  incorporated  the 
Enfield  Bridge  Company,  inserted  in  a  charter  subsequently 
granted  by  them  to  the  Hartford  and  Springfield  Railroad  Com- 
pany a  provision  in  these  words:  "That  nothing  therein  con- 
tained shall  be  construed  to  prejudice  or  impair  any  of  the 
rights  now  vested  in  the  Enfield  Bridge  Company."  This  pro- 
vision, comprehensive  as  its  language  may  seem  to  be,  was 
decided  by  the  supreme  court  of  the  state  as  not  embracing  any 
exemption  of  the  Bridge  Company  from  the  legislative  power 
of  eminent  domain,  with  respect  to  its  franchise  but  to  declare 
this,  and  this  only — that  notwithstanding  the  privilege  of  con- 
structing a  railroad  from  Hartford  to  Springfield  in  the  most 
direct  and  feasible  route,  granted  by  the  latter  charter,  the  fran- 
chise of  the  Enfield  Bridge  Company  should  remain  as  invio- 
late as  th-  ptoperty  of  other  citizens  of  the  state.  These  deci- 
sions susta.u  clearly  the  following  positions  comprised  in  this 
summary  gi  'en  by  Chancellor  Walworth  (3  Paige,  73)  where 
he  says  that  "notwithstanding  the  grant. of  individuals,  the 
eminent  domain,  the  highest  and  most  exact  idea  of  property, 
remains  in  the  government  or  in  the  aggregate  body  of  the 
people  in  their  sovereign  capacity ;  and  they  have  a  right  to 
resume  the  possession  of  the  property  in  the  manner  directed 
liy  the  constitution  and  laws  of  the  state  whenever  the  public 
interest  requires  it.  This  right  of  resumption  may  be  exercised 
not  only  when  the  safety,  but  also  when  the  interest  or  even 
the  expediency  of  the  state  is  concerned."  In  these  positions 
rontaining  no  exception  with  regard  to  property  in  a  franchise 
[an  exception  which  we  should  deem  to  be  without  warrant  in 


i 


72       I.lMITATinXS   TO  OWNKUSIIir  OF    PF-RSOVAI.  mOI'KUTY. 

reason]  \vc  recognize  the  true  doctrines  of  the  law  as  apnlica- 
hlc  to  the  cases  before  us.  In  considering^  the  question  of  con- 
stitutional power — the  only  question  properly  presented  upon 
these  records — vvc  institute  no  inquiry  as  to  the  adetjuacy  or 
inadequacy  of  the  compensation  allowed  to  the  plaintiffs  in 
error  for  the  extinj^uishnient  of  their  franchise;  nor  do  we 
inquire  into  the  conformity  between  the  modes  prescribed  by 
the  statutes  of  Vermont  and  the  proceedings  which  actually 
were  adopted  in  the  execution  of  those  statutes ;  these  are  mat- 
ters rco-arded  liy  this  court  as  peculiarly  l)elonging  to  the  tri- 
bunals designated  by  the  state,  for  the  exercise  of  her  legitimate 
authority  and  as  being  without  the  province  assigned  to  this 
couct  bv  the  judiciary  act. 

Upon  the  whole  we  consider  the  authority  claimed  for  the 
state  of  Vermont  and  the  exertion  ox  that  authority  which  has 
occurred  under  the  provisions  of  the  r-tatute  above  mentioned  by 
the  extinguishment  of  the  franchise  previously  granted  the  plain- 
tiffs, as  set  forth  upon  the  records  before  us,  as  presenting  no 
instance  of  the  impairing  of  a  contract,  within  the  meaning  of 
the  tenth  section  of  the  first  article  of  the  constitution  and  con- 
sequently no  case  which  is  proper  for  the  interposition  of  this 
court. 

The  decisions  of  the  supreme  court  of  Vermont  are  there- 
fore affirmed. 

Mr.  JrsTicK  McLeax  :  As  this  is  a  constitutional  question 
of  considerable  practical  importance,  I  will  state  succinctly  my 
general  views  on  the  subject. 

The  West  River  Bridge  under  the  statutes  of  Vermont  was 
appropriated  to  public  purposes.  And  it  is  alleged  that  the 
charter  under  which  the  bridge  was  built  and  possessed  under 
such  appropriation  was  impan-ed.  Our  inquiry  is  limited  to 
this  point.  For  whatever  injury  the  proceeding  may  have  done 
to  tile  interests  of  the  corporation  unless  its  contract  with  the 
state  was  impaired,  we  have  no  jurisdiction  of  the  case. 

The  power  in  a  state  to  take  private  property  for  public 
use  is  undoubted.  It  is  an  incident  of  sovereignty,  and  its  exer- 
cise is  often  essential  to  advance  the  public  interests.  This  act 
is  done  under  the  regulations  of  the  state.  If  those  regulations 
have  not  been  strictly  observed,  that  is  not  a  matter  of  inquiry 


^■«B 


n'KUTY. 


■WEST    IU\'HI!     UlillKil':    CO,    V.    Vl\. 


73 


•  as  apnlica- 
stioii  of  con- 
scp.tetl  upon 
adequacy  or 
plaintiffs  in 
nor  do  \\c 
irescribcd  by 
licli  actually 
u'sc  are  mat- 
s' to  the  tri- 
icr  Icijitiinatc 
^ncd   to   this 

imed  for  the 
ty  which  has 
nentioned  by 
ted  the  plain- 
5rescntin<^  no 
;  meaning  of 
ion  and  con- 
sition  of  this 

nt  are  there- 


)nal  question 
iuccinctly  my 

V^ermont  was 
ged  that  the 
isessed  under 
is  limited  to 
ay  have  done 
act  with  the 
case. 

:y  for  public 
,  and  its  exer- 
ts. This  act 
ie  regulations 
ter  of  inquiry 


for  this  court.   The  local  tribunals  have  the  exclusive  power  in 
smli  cases. 

This  act  by  a  state  has  never  been  held  to  impair  the  ol)ii- 
<,'ation  of  the  contract  by  which  the  property  appropriated  was 
liclii.  The  power  acts  upon  the  property  and  not  on  the  con- 
tract. A  state  can  not  ainiul  or  modify  a  grant  of  land  fairlv 
made.  But  it  may  take  the  land  for  public  use.  This  is  done 
iiy  making  compensation  for  the  property  taken  as  provided  by 
law.  JJut  if  it  be  an  appropriation  of  property  to  public  use,  it 
can  not  be  held  to  impair  the  obligations  of  the  contract. 

It  is  insisted  that  this  was  a  pretended  exercise  of  the 
power  of  the  eminent  domain  with  the  view  of  destroying  the 
force  and  obligation  of  the  plaintiff's  charter. 

This  whole  proceeding  was  under  a  standing  law  of  the 
state  and  it  was  sanctioned  on  an  appeal  by  the  supreme  court 
of  the  state.  A  procedure  thus  authorized  by  law  and  sanc- 
tioned, can  not  be  lightly  regarded.  It  has  all  the  solemnities 
'if  a  sovereign  act. 

But  it  is  said  that  the  franchise  of  the  plaintiff  can  not  be 
denominated  property;  that  "it  included  the  grant  of  no 
property,  real  or  personal;  that  it  lay  in  grant  and  not  in 
livery." 

If  the  action  of  the  state  had  been  upon  the  franchise  only 
this  objection  would  be  unanswerable.  The  state  can  not 
modify  or  repeal  a  charter  for  a  bridge,  a  turnpike  road,  or  a 
hank,  or  any  other  private  charter  unless  the  power  to  do  so 
has  been  reserved  in  the  original  grant.  But  no  one  doubts  the 
power  of  the  state  to  make  a  banking  house  for  public  use, 
or  any  other  real  or  personal  property  owned  by  the  bank.  In 
this  respect  a  corporation  holds  property  subject  to  the  eminent 
domain  the  same  as  citizens.  The  great  object  of  an  act  of 
incorporation  is  to  enable  a  body  of  men  to  exercise  the  faculties 
of  an  individual.  Peculiar  privileges  are  sometimes  vested  in 
the  body  politic  with  the  the  view  of  advancing  the  convenience 
and  interests  of  the  public. 

The  franchise  no  more  than  a  grant  for  land  can  be  annulled 
In  the  state.  These  muniments  of  right  are  alike  protected. 
lint  the  property  held  under  both  is  held  subject  to  a  public 
necessity  to  be  determined  by  the  state.  In  either  case  the 
property  being  taken  renders  valueless  the  evidence  of   right. 


■  '<fiB&>iiU-iwii*Si*^'«e^-^ — 


felBI 


74     i.nin  ATioNs  to  owneksiiii-  or  ituisonal  propertv. 

13iit  this  docs  not,  in  the  sense  of  the  constitution,  impair  the 
contracts.  The  bridge  and  the  ground  connected  with  it. 
together  with  the  right  of  exacting  toll,  are  the  elements  whuh 
constitute  the  value  of  the  bridge.  The  situation  and  prodiu- 
tivencss  of  the  soil  constitute  the  value  of  land.  In  both  cases 
i,n  estimate  is  made  of  the  value  under  prescribed  forms  and  it 
is  paid  when  the  property  is  taken  for  public  use.  And  in  these 
cases  the  evidences  of  right  are  incidents  to  the  property. 

No  state  could  resume  a  charter  under  the  power  of  appro- 
p.  iation  and  carry  on  the  functions  of  the  corporation.  A  ba>ik 
charter  could  not  be  thus  taken  and  the  business  of  the  bank 
continued  for  public  purposes.  Nor  could  this  bridge  have  been 
taken  by  the  state  and  kept  up  by  it  as  atoll  bridge.  'Ih.s 
could  not  be  called  an  appropriation  of  private  property  to  pul- 
lie  purposes.  There  would  be  no  change  in  the  use  except  the 
application  of  the  profits,  and  this  would  not  bring  the  act 
w  ithin  the  power.  The  power  must  not  only  be  exercised  bona 
fide  by  a  state  but  the  property,  not  its  product,  must  be  applied 

to  public  use. 

It   is  argued  that  if  the  state  may    take  this   bridge,  it  may 
transfer  it  to  other  individuals  under  the  same  or    a  different 
charter.     This  the  state  can  not  do.     It  would  in  effect  be  tak- 
ing  the   property  from  A.  to  convey  it  to  B.     The  public  pur- 
pose for  which  the  power  is  exerted  must  be  real  not  pretended, 
If  in  the  course  of  time  the  property  by  a  change  of  circumstan- 
ces .should  no  longer  be  required  for  public  use  it  may  be  other- 
wise disposed  of.     But  this  is  a  case  not  likely  to  occur.     The 
legalily  of  the  act  depends  upon  the   facts    and    circumstances 
under  which  it  was  done.     If   the  use  of   land   taken   by  the 
public  for  a  highway  should  be  abandoned,  it  would   revert  to 
the  original  proprietor  and  owner  of  the  fee. 

It  is^'objccted  that  this  bridge,  being  owned  by  a  corporation 
and  used  by  the  public,  does  not  come  within  the  designation  oi 
private  property.  All  property  whether  owned  by  an  individual 
or  individuals,  a  corporation  aggregate  or  sole  is  within  the 
term.     In  short,  all  property  not  public  is  private. 

The  use  of  this  bridge,  it  is  contended,  is  the  same  as  before 
the  act  of  appropriation.  The  public  use  the  bridge  now  as 
before  the  act  of  appropriation.  But  it  was  a  toll  bridge,  and 
by  the  act  it  is  made  free.     The  use  therefore  is  not   the  same. 


n  «.■>  ^M  iiiJ-M  i><  O  ^> 


\.:,  IMIOPKRTV. 


"WEST  nivEK  nniDGE  CO.  V.  nix. 


75 


tution,  impair  the 
onnectfd  with  it, 
be  elements  whiili 
lation  and  prodiu- 
id.  In  both  case>- 
iribcd  forms  and  it 

use.  And  in  tlicsi' 
be  propLTty. 
e  power  of  appin- 
poration.  A  bank 
sincss  of  tlie  bank 
is  bridge  have  bctii 

toll  bridfje.  Tins 
Ue  property  to  pub- 
I  the  use  except  the 

not  bring  the  act 
ly  be  exercised  ioi/a 
ict,  must  be  appliwl 

this  bridge,  it  may 
same  or  a  different 
iild  in  effect  be  tak- 
3.  The  public  pui- 
;  real  not  pretended, 
bange  of  circumstan- 

use  it  may  be  other- 
kely  to  occur.  The 
,    and    circumstances  I 

land   taken   by  the 
1,  it  would  revert  to  | 
e. 

aed  by  a  corporation 
lin  the  designation  oi 
'ned  by  an  individual 
r    sole  is    within  the 

private. 

is  the  same  as  before 
;  the  bridge  now  as 
,'as  a  toll  bridge,  and 
ifore  is  not   the  same. 


'1  he  tax  assessed  on  the  citizens  of  the  town  to  keep  up  and  p.iy 
U>v  tlie  bridge  may  be  impolitic  or  imjust,  but  that  is  not  a  mat- 
in lor    the  CDiisideratiun  of  this  court.      It    is  supposed,  if  this 
l>M\ver  is  sustained  by  the  state  of   Vermont,  it   will   be'   in  the 
power  of  the  state  to  seize  the  evidences  of  its  indelitmeut  in  the 
h;iiuls  of  its  citizens  or  within  its  jurisdiction,  have  their   value 
assessed,  and  by  paying  the  amount  extinguisli  them.     .Such  a 
cave  bears  no  analogy  to  the  one  before  us.      The  contract  only 
is  acted  upon  in  the  case  supposed.     The  obligation  to  pay  tiie 
money  by  the  state  is  materially  impaired,  which  brings  the  case 
witiiin  the  constitution.      IJut    the     appropriation    of    property 
affects  tiie  contract  or  title  by  which  it  is  held  only  incidentally. 
This,  it  is  said,  is  an  extremely  te,chnical  distinction,  and  is  not 
siistain.ible,  as  it  enables  a  state  to  do  indirectly  what  the  con- 
stitution prohibits.      However  nice  the  distinction  may  seem  to 
l>c,  when  examined  it  will  be  found  substantial.     The  power  of 
appropriation  by  a  state  has   never  lieen  held  by  a  judicial  tri- 
hiiiial  as  impairing  the  obligations  of  a  contract  in  the  sense  of 
tiie  constitution.     And  this  power  has  been  frequently  exercised 
hy  ail  the  states  since  the  adoption  of  the  constitution.     In  the 
fifth  article  of  the  amendments  to  the  constitution  it  is  declared, 
"Xor  shall  private  property  be  taken  for  public  use  without  just 
compensation."   This  refers  to  the  action  of  the  federal  govern- 
ment, but  a  similar  condition  is  contained  in  all  the  state  consti- 
imions.     Now  the  constitution  does  not  prohibit   a   state   from 
impairing  the  obligation  of  a  contract  unless   compensation  be 
made,  but  the  inhibition  is   absolute.     So  that   if  such   an  act 
came  within   the  prohibition   the   act  is  unconstitutional.      But 
this  power  has  been  exercised  by  the  states  since  the  foundation 
of  the  government  and  no  one  has  supposed  that  it  was  prohib- 
ited by  that  clause    in  the  constitution    which    inhibits  a  state 
"from  impairing  the  obligations  of  a  contract." 

The  only  reasonable  result  therefore  to  which  we  can  come 
is  that  the  power  in  the  state  is  not  an  independent  power  and 
:loes  not  come  within  the  class  of  cases  prohibited  by  the  consti- 
tntion. 

This  view  gives  effect  to  the  constitution  by  imposing  a  salu- 
tary restraint  upon  legislation  affecting  contracts  but  leaves 
the  states  free  ir.  their  exercise  of  the  eminent  domain  which 
belongs  to  their  sovereignties,  is  essential  for   the  advancement 


-m 


rG      LIMll  ATIONS  TO  OWNlCltSllir  Ol'-    I'ICIlSdNAI.  I'Hol'KUlY. 

of  iiitcvnal  improvements,  niul  nets  only  upon  propcrtv  within 
tlieir  respective  jurisdictions.  The  powers  do  not  l)eionj,'  to  tiie 
same  class.  That  which  acts  upon  contracts  and  impairs  tiieir 
obligation  only  is  prohibited. 

Mr.  Justice  Woodbury  delivered  a  concurrinfr  opinion. 

CoNsei-T-Secombev.R.  Co.,  23  Wall.  l<iS;  Greenwood  v.  Freight  Co., 
105  C.  S.  i.v,  Cooper  v.  Williams,  4  Ohio,  25.-?,  ^2  Am.  Dec.  745;  Litlle 
Rock,  etc.,  K.  Co.  v.  Woodrull,  .\i)  Ark.  .381,4  Am.  St.  Kep.51;  Hurt  v. 
Merchants  Ins.  Co.,  106  Mass.  ih^,V,  Am.  Uci..  3.39;  Tavlor  v.  Porter,  4 
Hill.  140,  40  Am.  Dec.  175;  Crosby  v.  Hanover,  36  N.  H.  454;  ^^ 'H- 
vard  V.  Hamilton,  7  Ohio,  in,  30  Am.  Dec.  195;  County  Court  v.  Gris- 
wold,  58  Mo.  175;  Re  New  York  Central  R.  Co.,  63  N.  Y.  326;  I'eoria, 
etc.,  R^Co.  V.  R.  Co.,  66  111.  174;  I'orney  v.  R.  Co.,  23  Neb.  465;  .St. 
Louis,  etc..  R.  Co.  v.  Union  Depot  Co.,j8  S.  W.  Rep.  4«3CMo); 
Leisse  v.  R.  Co.,  i  Mo.  (App.)  105. 


§  15.    Same-  The  case  of  public  necessity. 

AMERICAN  i'RINT  WORKS  v.  LAWRENCE. 

[23  N.  J.  (L.)  590;  57  Am.  Dec.  420.] 

Neiv  Jersey  Coiii-t  of  Errors  and  Appeals,  J 851. 

The   action  was  one   of   trespass  ap;ainst  the    defendant  for 
destroying  the  plaintiff's  goods  by  gunpowder. 

Carpenteu,  J. — The  second  special  plea  is  so  framed  as  to 
set  up  a  justification  arising  out  of  the  common  law  doctrine  of 
necessity,  and  it  seeks  no  aid  from  the  statute.  It  sets  out  that 
there  was  a  fire  raging  in  the  city  of  New  York  which  threat- 
ened destruction  to  a  large  portion  of  ihe  city ;  that  certain  build- 
ings were  peculiarly  exposed  and  likely  to  take  fire,  and 
communicate  fire  to  other  buildings,  and  but  for  the  acts  of  the 
defendant  would  have  taken  fire  and  communicated,  etc.  ;  that 
to  prevent  the  spreac.  of  the  conflagration  and  the  destruction 
of  a  large  portion  of  the  city,  the  immediate  destruction  of  the 
said  buildings  was  necessary,  without  waiting  to  remove  the 
goods  therein;  and  that  for  this  purpose^  c'-  defendant,  a  resi- 
dent citizen  and  owner  of  valuable  building      ^.  the  city,  caused 


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vV 


AMERICAN    I'UINT    WORKS    V.     L AWRKNC'E. 


77 


the  said  buildings  to  be  blown  up,  and  did  thereby  necessarily 
[aiul  unavoidably  destroy  the  goods,  etc. 

The  plea  does  not  in  terms  aver  that  the  goods  were  the  cause 

I  of  alarm  and   danger,  and  therefore  the  immediate   object    of 

destruction,  but  that  necessity  require  the    immediate  dcstruc- 

I  tion  of  the  buildings  without  waiting  to  remove  the  goods,  which 

unavoidably  involved  the  destruction  of  the   goods.      The  plea 

sets  up  that  the  building  and  the  goods  were    so  connected  that 

i  tiie  necessity  of  destroying  the  former  necessarily  involved  the 

destruction  of  the  latter ;  and  the  justification   is   made  to  rest 

upon  the  ground  that  the   right  to  destroy   the  buildings  must, 

1  therefore,  include  the  right  to  destroy  the  goods. 

If,  which  I  do  not  in  the  least  doubt,  there  can  be  an  impe- 
irious,  overwhelming  necessity  of  instantly  destroying  buildings, 
uitliout  waiting  to  remove  the  goods  stored  therein,  in  order  t^p 
piexent  the  spread  of  fire,  I  suppose    this  to    be  the    mode   in 
I  which  the  necessity  must  be  pleaded,  the  goods  themselves  not 
liiiiil  the  cause  of  alarm  or  danger.     The  plea,  therefore,  docs 
I  not  seem  to  be  obnoxious  to  the  objection  of  argumentativeness. 
It  is   proper,  howeve",  to  remark,  that  even  if   the  plea    were 
nu'umentativc,  it  is  an  objection  in  point   of   form   only  which 
{can  not  be  raised  by  general  demurrer.     It  would  not  be  avail- 
able, therefore,  to  the  plaintiff  in  the  present  instance,  all  objec- 
tions  to    mere    form  having   been  waived  by   pleading   over. 
(jould's  PI.  467,  46S,  sec.  iS. 

Hut  the  leading  objection  taken  to  this  plea  is  that  it  does  not 

I  vhow  any  individual  or  personal  interest  in  the  defendant,   nor 

any  immediate,  overwhelming  danger  to  him  or  his  property. 

It  is  urged  that  to  make  a  valid  plea,  setting   up  the  exercise  of 

the  right  of  necessity,  the   defendant   must  show    that  his  own 

property  was  in  immediate  danger,  and  that  the, destruction  was 

tor  tlie  purpose  of  preserving  it.     That  it  is  not  enough  that  this 

defendant  was  a  resident  citizen  of  New    York,  owning    prop- 

jiitv  and  having  a  general  interest  in  the  safety  and  welfare  of 

thu   city,  but  that  he   could  only  so   interpose   when   the  act 

hciamc  absolutely  necessary  to  preserve  his  own  property  from 

immediate  destruction.     I  do  not  so  understand  the  doctrine,  as 

applied  to  that  branch  of  the  law  of  necessity  now  in  question. 

Such  limited  view  was  certainly  not  taken   by  this    court  on 

Ithe  former  review;  on  the  contrary,  the   language   used  in  the 


7S 


LIMITATIONS  TO  OWNERSHIP  OF    PERSONAL  PROPERTY. 


leadin-  opinion  would  seem  to  lead  to  a  very  different  conclu- 
sion.   ''Xhe  right  to  take  or  destroy  private  property  by  an  mdi- 
vidual  in  self-defense,  or  for  the   protection  of   life,  libe- ty,  or 
propcrtv  was  said  to  be  a  private  and   not  a  public  or  ofTicial 
right.     It  was  said  that  it  might  be  exercised  by   a  single    indi- 
vidual for  his  own  personal  safety,  or  security,  or  for  the  pres- 
ervation of  his  own  property,  or  by  a  community  of  individuals 
in  the  defense  of  their  common  safety,  or  in   the   protection  of 
their    common  rights.      Male  v.    Lawrence,    i    Z.ib.    729,  47 
Am.    Dec.     190.     Again,  in  reply    to   the   argument  that  the 
destruction  of   the  store  and  its   contents,  for  which  suit  was 
brought,  was  not  for  the  public  use  and  benefit  in  the  sense  in 
which  those  terms  were  used  in   the  passage   referred  to,  and, 
therefore,  that  the  doctrine  of  eminent  domain  was  not  applica- 
ble, it  was   said  the  position  would  be  true,   if  not  done  under 
the' authority  of  the  statute,  but  by  the  defend.int  by  virtue  of 
his  natural  right,  and  in  defense  of  his  own  or  of  his  neighbor's 
property,  ov  '  v  a  number  of  individuals  to  prevent  a  common 
calamity  that  threatened  a  particular  street  or  district.     Id.  73S. 
The  force  of  the  argument  here   depends   upon   the  doctrine 
implied,  if  not  directly  expressed,  that  an  individual  may,  in  the 
exercise  of  the  common  law  right  of  necessity,  take  and  destroy 
private    property,  not  only  in  defense  of   his  own,  but  of    his 
neighbor's  property,  and  that  individuals  in  a  community  may 
so  lict   to    prevent    a   general    calamity    to   that    community, 
and    in    protection  ,'  'heir   common   rights.     If  it  be   asked, 
"Who    is    my  neighbor,    for    whose    benefit    this    right    of 
charity    and     kindness,    as  well    as    of    necessity,     may    be 
exercised?"      let     the     necessity      itself,      for     which      it     is 
intended    to    provide,  be   the    answer.      liut  the  passages    I 
have  cited  have  been  referred  to,  not  so  much   to  establish  the 
view  which  it  seems  to  me  may  reasonably  be   adduced   there- 
from, as  to  show  that  this  court  is  now  not  committed,  even  by 
dicia,  to  the  more  limited  rule  contended  for  by  the  plaintiff  in 

error. 

The  common  law  doctrine  of  necessity  is  one  that  is  now  too 
firmly  established  to  be  drawn  in  question  and  yet,  perhaps, 
necessarily  from  its  very  character  it  seems  somewhat  undefined 
as  to  its  application  and  extent.  It  may,  by  the  way,  be  remark- 
ed that   it    is   not   less  unquestionable   as  an  established  doc- 


nOPEUTY. 

[ferent  conclu- 
rty  by  an  indi- 
ife,  libc  ty,  or 
jlic  or  official 
a  single  indi- 
)r  for  the  pres- 
of  individuals 

protection  of 
Zab.    729,  47 
iment  that  the 
i'hich  suit  was 
in  the  sense  in 
f erred  to,  and, 
as  not  applica- 
lot  done  under 
t  by  virtue  of 
:  his  neighbor's 
ent  a  common 
itrict.     Id.  73S. 
>n   the  doctrine 
iial  may,  in  the 
ake  and  destroy 
vvn,  but  of   his 
ommunity  may 
at    community, 
If  it  be   asked, 

this    right    of 
ssity,     may    be 

which  it  is 
the  passages  I 
to  establish  the 
adduced  there- 
mittcd,  even  by 
'  the  plaintiff  in 

that  is  now  too 
d  yet,  perhaps, 
evvhat  undefined 
way,  be  remark- 
established  doc- 


AMERICAX    PRINT    WORKS    V.    I.AWREXCE. 


79 


trine,  because  its  origin  so  far  as  regards  a  justification  at  the 
common  law,  is  only  to  be  found  in  the  illustrative  arguments 
of  the  older  authorities,  and  not  in  any  direct  adjudication.  Its 
exercise  must  depend  upon  the  nature  and  degree  of  necessity 
that  calls  the  right  into  action,  and  which  can  not  be  determined 
until  the  necessity  is  made  to  appear.  The  necessity  must  be 
immediate,  imperative,  and  in  some  cases  extreme  and  over- 
whelming. Mere  expediency  or  utility  will  not  suffice.  The 
doctrine  seems  to  arrange  itself  under  different  heads,  to  which 
somewhat  different  rules  will  be  applicable. 

The  conservation  of  life  is  one  of  the  occasions  which  will 
call  it  into  exercise,  of  which  the  necessity  of  self-preservation 
is  one  of  the  marked  and  striking  instances.  Self-preservation 
is  one  of  the  great  rules  of  our  being,  implanted  in  us  by  our 
Creator,  and  recognized  under  this  doctrine  by  the  common  law. 
The  right  to  destroy  property,  or  even  life,  when  necessary  for 
self-preservation,  is  an  admitted  right.  Thus,  as  an  instance 
frequently  referred  to,  if  two  men  be  on  one  plank  insufficient 
to  save  both,  and  one  be  thrust  off  and  drowned,  the  homicide 
is  excusable,  indeed,  justifiable,  through  unavoidable  necessity, 
upon  the  great,  universal  principle  of  self-preservation,  which 
prompts  every  man  to  save  his  own  life  in  preference  to  that  of 
another,  when  one  must  inevitably  perish.  Noy's  Max.,  pp.  33, 
25.  The  taking  of  viands  to  satisfy  urgent  hunger,  the  neces- 
sity being  made  to  appear,  this  is  no  felony  or  larceny.  So,  a 
jail  being  on  fire  by  casualty,  and  the  prisoners  are  enabled  to 
get  out,  this  is  no  escape  nor  breaking  of  the  prison.  15  Vin. 
Abr.  534,     Necessity. 

Again,  there  is  a  necessity  arising  out  of  the  act  of  God  or  of 
strangers,  as  of  public  enemies;  and  in  regard  to  this  it  is  said 
one  man  may  justify  committing  the  private  injury  for  the  pub- 
lic good.  Instances  are  thus  put  in'an  old  authority.  In  time 
of  war  a  man  may  justify  making  fortifications  on  another's 
land  without  license;  also,  a  man  may  justify  pulling  down  a 
house  on  fire  for  the  safety  of  the  neighboring  houses ;  for  these 
are  cases  of  the  common  weal.  Maleverer  v.  Spinke,  i  Dyer, 
36b.  See,  also,  the  Saltpeter  case,  12  Co.  13;  Mouse's  case. 
Id.  63,  etc.  The  ground  on  which  this  necessity  rest's,  it  is 
seen,  is  placed  on  the  principle,  not  of  mere  individual  necessity, 
but  of  the  public  good.     The  right  may,  as  in  the  former  class, 


So       I.nilTATIONS  TO  OWXKnSIIIP  OF    PERSONAL  PROPERTY. 

be  a  private,  and  not  a  public  or  official  right;  it  may  be  one 
that  appertains  to  individuals,  and  not  to  the  state.  Rut  still 
tlie  older  authorities  to  which  I  have  referred,  and  which  are 
generally  cited  for  the  doctrine,  place  it,  in  these  instances,  not 
on  the  ground  of  the  individual  advantage  of  the  acior,  but  of 
the  common  weal,  in  order  to  save  the  city.  The  case  of  pull- 
ing down  a  house  in  time  of  fire  is  given  as  an  act  done  for  the 
public  good. 

That    branch    of    the    doctrine    to    which  I  now    refer  is   of 
course  to  be  distinguished    from  that    mere    appropriation    for 
public  utility  under  a  general  state  necessity  and   which  comes 
within  the  doctrine  of    the    eminent  domain.     They  are    both 
spoken  of  sometimes  as  grounded  on  necessity,  and  they  doubt- 
less are  so.      But  the  latter  stands  strongly  distinguished   from 
the  urgent  necessity  which,  for  immediate  preservation,  impera- 
tively demands  immediate  action,      His  case  should   throw   up 
trenches  on  his  neighbor's  land  for  the  protection  of  a  town  from 
an  immediate  hostile  attack,  as  regards  his  justification,  would 
certainly  stand  on  a  very  different  footing  from  one  who,  under 
the  authority  of  law,  should  do  the  same  act  in  order  to  guard 
the  town  from   prospective   and  merely   possible  future   harm. 
The  one  might  be  a  private   and  unofficial   act  to   protect   the 
community  of  which  he  was  a  part  from  urgent  danger;  an  act 
which  might  be  justified  under  the  doctrine  of  necessity,  which, 
for  the  common  weal,  every  man  may  do  without  an  aition.    It 
is  not  necessary  for  my  purpose  to  intimate   any  opinion  as  to 
whether  in  the  last  case,  the  -individual  would  or  would  not  be 
personally  responsible,  but  certainly   the  sufferer  would   come 
within  the  constitutional  provision.     The   distinction   between 
the  cases  when  the  act  was  done  under  the  pressure  of  threaten- 
ing danger  which  it  was  necessary  to  avert  and  when  taken  for 
the  benefit  of  the  public  under  a  grant  of  power  was   well   put 
bv  Chief  Justice  Nelson  in  one  of  the  New  York  fire  cases  aris- 
ing under  the  statute  so  frequently  referred  to.     "The  one,"  he 
savs,  "presents  a  question  of  responsibility  by  a  citizen  acting 
under  the  influence  of  an  overruling  necessity,  solely  for  the  pub- 
lic good,  the  decision  turning  not  so   much   upon   the  want  of 
merit  in  the  claim  for  redress,  as  upon  the  injustice  of  making 
the  defendant  liable  who  had  thus  acted  for  the  benefit  of  the 
public.     The  other   the  case   upon  the   statute,  Is  a   question 


«■« 


iM 


ROPERTY. 

t  may  be  one 
te.  But  still 
nd  which  are 
instances,  not 
acior,  but  of 
e  case  of  puU- 
;t  done  for  the 

3W    refer  is   of 
ropriation    for 

whicli  comes 
rhey  are    both 
nd  they  doubt- 
iguished   from 
ation,  impera- 
)uld   throw   up 
)f  a  town  from 
jication,  won  id 
ne  who,  under 
order  to  guard 
I  future    harm, 
to  protect   the 
danger;  an  act 
cessity,  which, 
t  an  aition.    It 
y  opinion  as  to 
r  would  not  be 
X  would   come 
iction    between 
Lue of  threaten- 
when  taken  for 
r  was  well   put 
:  fire  cases  aris- 
"The  one,"  he 
\  citizen  acting 
ely  for  the  pub- 
3n   the  want  of 
itice  of  making 

benefit  of  the 
,  Is  a    question 


AMERICAN    PRINT    WORKS    V.    LAWRENCE. 


8l 


between  the  sufferer  and  the  city  for  whose  benefit  his  property 
has  been  sacrificed,  when  the  authorities  of  the  city  are  empow- 
ered to  determine  at  discretion  when  and  under  what  circum- 
stances it  shall  be  thus  sacrificed."  The  Mayor  of  New  York 
V.  Lord,  17  Wend.  290,  291.  "I  entertain  no  doubt,"  says 
Justice  Bronson  in  the  same  case,  "that  in  a  case  of  necessity, 
to  prevent  the  spreading  of  a  fire,  magistrates  or  individuals 
may  destroy  private  property  without  subjecting  themselves  to 
an  action  for  damages.  This  is  only  one  of  the  many  cases 
where  the  maxim  applies,  Salus  fopuli  stipretna  lex."  Id. 
297.  Chancellor  Kent  1  aces  the  rule  on  the  same  ground,  and 
says,  it  is  lawful  to  raze  houses  to  the  ground  in  order  to  prevent 
the  spread  of  a  conflagration,  because  it  is  a  case  of  urgent  ne- 
cessity, in  which  the  rights  of  property  must  be  made  subser- 
vient to  the  public  welfare.     2  Kent's  Com.  33S. 

I  have  cited  these  authorities  to  show  that  a  distinction  must 
be  made  between  the  different  branches  of  the  law  of  necessity. 
The  distinction  must  now  be  apparent  between  that  overwhelm- 
ing necessity  which  will  justify  one  in  the  destruction  of  the 
person  and  property  of  another,  and  when  the  right  is  solely  for 
the  advantage  of  the  actor,  and  that  necessity  which  arises  from 
the  danger  of  conflagration  in  a  great  city,  or  other  analogous 
instances,  and  which  rests  for  its  exercise  upon  the  subservience  of 
private  rights  to  the  public  good.  It  may  well  be  that  a  person 
shall  not  justify  the  destruction  of  another  in  order  to  save  a 
stranger.  An  assault  is  only  justifiable  when  committed  in  the 
defense  of  one's  self,  or  of  those  who  stand  in  some  near  and 
dear  relation  to  the  actor.  The  necessity  of  self-preservation, 
which  is  for  the  advantage  of  the  actor,  can  have  no  wider  foun- 
dation. The  right  being  a  personal  one,  it  is  reasonable  to 
suppose  that  it  can  be  exercised  only  by  the  party  in  danger  for 
his  own  benefit,  or,  as  would  seem  tO  be  a  reasonable  conclusion, 
for  the  safety  of  husband  or  wife,  parent  or  child.  But  can  the 
same  rule  apply  to  the  efforts  which  must  so  frequently  be  made 
to  save  a  city  from  fire,  and  which  rests  upon  a  less  restricted 
principle.'  There  can  certainly  be  no  such  limitation  of  the 
right  as  is  inconsistent  with  the  reason  of  the  law  and  the  object 
to  be  obtained  by  its  exercise.  In  vain  would  the  call  be  made  on 
firemen  and  others  to  stay  the  progress  of  the  flames  if  the 
6 


S3       LIMITATIONS  TO  OWNEKSHIP  OF    PEUSON'AL  PKOPEUTY. 

imminent  danger  of  one's  own  property  could  be  the  only  justi- 
fication of  any  necessary  act  of  destruction  in  order  to  effect  that 
object.  If  a  man's  own  property  must  first  be  in  imminen'-  peril 
there  would  be  an  end  to  all  ettlcient  efforts  to  stay  the  progress 
of  conflagration.  I  have  no  doubt  the  rule  is  otherwise.  I  think 
the  second  special  plea  is  a  good  plea. 

The  replications  I  consider  to  be  clearly  bad.     To  both  pleas 
they  set  up  new  facts,  and  in  both  cases  they  tender  a  traverse 
upon  facts  not  set  up  or  denied  by  the  pleas.   Looking,  however, 
at  the  main  point,  which  it  is  urged  is  presented  by  these  repli- 
cations, that  the  immediate  destruction  of   the  goods  was  not 
necessary,  such  defense  is  not  set  up  in  the  pleas.     The  pleas 
are  in  the  one,  ihat  the    buildings    were    lawfully,  and    in    the 
other,  that  they  were  necessarily  destroyed  in  order  to  stop  the 
progress  of  conflagration,  and  that  the  destruction  of  the  goods 
was  the  unavoidable  and  inevitable  consequence,  there  not  being 
time  to  remove  them.  The  lawfulnessor  the  necessity  to  destroy 
the  buildings  should  have  been  denied  by  a  special  traverse  of 
some  material  fact  upon  which  he  relied  to  show  that  the  build- 
ings were  so  destroyed,  or  by  setting  up  in  the  replication  that 
the  goods  might  have  been  removed.     An  issue  upon  either  of 
these  points  if  decided  in  favor  of  the  plaintiff  would  be  fatal  to 
the  defense.     If  the  pleas  are  good,  which  I  take  them  to  be, 
the  replications  are  bad. 

I  am  of   the  opinion    that   the    judgment   below    should   be 

affirmed. 

Randolph,  J.,  delivered  a  concurring  opinion. 

Consult— Hale  V.Lawrence,  21  N.J.  (L.)  714,47  Am.  Dec.  190;  Bishop 
V.  Mayor,  7  Ga.  200,  50  Am.  Dec.  400;  Noyes  v.  Shepherd,  30  Me.  173,  50 
Am.  Dec.  625;  Harrison  v.  Wisdom,  7  Heisk.  114;  Field  v.  Des  Moines, 
30  Ta.  C78.  18  Am.  47;  Proctor  v.  Adams,  113  Mass.  376,  18  Am.  Rep. 
500;  Campbell  v.  Race,  7  Cush  40S;  Taylor  v.  R.  Co.,  6  Cold.  646,  98 
Am.  Dec.  474;  Brill  v.  Flagler,  ?3  Wend.  333. 


;OPERTY, 

he  only  justi- 
■  to  effect  that 
mmuien'-  peril 
Y  the  progress 
:\viic.  I  think 

To  both  pleas 
[ler  a  traverse 
ing,  however, 
)y  these  repli- 
Dods  was  not 
s.  The  pleas 
\f,  and  in  the 
ler  to  stop  the 
I  of  the  goods 
licre  not  being 
isity  to  destroy 
ial  traverse  of 
that  the  build- 
eplication  that 
ipon  either  of 
luld  be  fatal  to 
e  them  to  be, 

3W   should   be 

arring  opinion. 

Dec.  190;  Bishop 
d,  30  Me.  173,  50 
i  V.  Des  Moines, 
',6,  18  Am.  Rep. 
,  6  Cold.  646,  98 


LIMirATIONS  TO  OWNKR.SIUf  OT    I'K  ItSON  AT,  I'UOl'KUTY.       S3 

§  18.    Same— The  claims  of  creditora. 

WADDINGIIAM  v.  LOKER. 

[44  Mo.  132;    100  Ain.  Dec.  260.] 
Supreme  Court  of  Missouri,  i86g. 

W.\GXEii,  J. — Plaintiffs  filc.l  their  petition  in  the  circuit  court, 
the  general  object  and  purpose  of  which  was  to  subject  certain 
stocks  held  by  the  widow  and  daughters  of  George  W.  Jencks, 
to  the  payment  of  debts  owing  to  him.  The  petition  set  out 
and  described  a  judgment  rendered  in  favor  of  Waddiugham 
against  Jencks,  while  both  were  living,  a  revival  of  that  judg- 
ment, partial  payments,  and  the  death  of  both  parties;  and  pro- 
ceeded to  state,  as  ground  of  relief  and  for  equital)le  interposi- 
tion, that  the  stock  in  question  had  been  originally  purchased 
with  the  money  and  means  of  Jencks  and  given  to  his  wife  and 
daughters  in  fraud  of  the  rights  of  his  creditors. 

The  answer  denied  that  the  stock  was  in  any  manner  or  in 
anv  sense  or  degree,  purchased  or  acquired  by  the  means  or 
credit  of  Jencks.  It  sets  forth  the  whole  histoiy  of  the  purchase 
of  the  stock  and  the  circumstances  attending  it.  It  states  that 
when  the  transfer  company  was  formed,  the  stock  of  which  is  in 
controvijrsy  in  this  suit,  Jencks  was  anemployeeof  the  Ohio  and 
Mississippi  Railroad  Company;  that  he  suggested  to  the  de- 
fendant Loker,  who  was  an  old  and  intimate  friend,  that  the 
stock  of  the  company  afforded  an  excellent  opportunity  for  good 
investment,  and  that  it  could  not  fail  to  be  profitable;  that 
Jencks  urged  Loker  to  subscribe  on  his  own  account  to  the  stock, 
and  also  urged  him  to  take  a  number  of  shares  for  the  benefit 
of  the  wife  and  daughters  of  Jencks,  assuring  him  that  in  his 
judgment  the  only  money  he  would  have  to  pay  on  account  of 
the  subscription  for  the  wife  and  daughters  of  Jencks  would  be 
the  first  installment,  that  the  dividends  would  speedily  pay  off 
the  residue  of  the  subscription  and  make  the  stock  good,  and 
refund  to  Loker  the  money  he  was  requested  to  advance.  The 
proposition  was  to  make  the  last  subscription  in  the  name,  of 
"Geo.  H.  Loker,  trustee;"  to  hold  the  stock  in  his  own  name, 
as  security,  iintil  he  was  fully  reimbursed,  and  then  to  transfer 


S.f       LIMITATION'S  TO  OWNKKSUIP  OP    PKHSOVAI.   I'UOPEUTY. 


it  to  the  wife  and  daughters  of  Jenclvs.  Loker  was  a  banker 
and  possessed  of  wealtli,  and  was  about  usinp;  his  means  for  the 
improvement  of  his  real  estate,  and  lie  ref^arded  Jencks'  propo- 
sals as  visionary,  and  refused  to  accede  to  them.  Jcncus  was 
wholly  insolvent  and  supported  his  family  on  a  salary  which  he 
received  from  the  railroad  comjiany.  At  last,  owinj^  to  the  im- 
portunity of  Jencks,  and  his  evident  distress  at  the  penniless 
condition  in  which  his  family  would  be  placed  in  the  event  of 
his  death,  Loker,  on  account  of  personal  friendship,  was  induced 
to  take  the  risk  of  making  a  subscription  in  his  own  name 
as  trustee,  and  to  advance  the  cash  payment;  if  the  ad- 
venture was  unsuccessful,  to  sell  with  as  little  loss  as  pos- 
sible; and  if  Jencks'  anticipations  were  realized,  then  after 
paying  himself  and  ten  per  cent  interest,  to  transfer  the  stock  to 
Mrs.  Jencks  and  her  daughters.  He  subscribed  accordingly  for 
fifty  shares,  nominally  valued  at  five  thousand  dollars,  and  ad- 
vanced in  cash,  as  a  first  payment,  two  thousand  dollars.  The 
stock  proved  extraordinarily  remunerative.  The  dividends  first 
canceled  Loker's  stock  note  for  the  deferred  payment,  then 
reimbursed  him  his  cash  installment  and  interest,  and  continued 
so  profitable  that  the  company  expanded  the  stock,  and  what 
was  originally  fifty  shares  grew  into  five  hundred,  and  still  con- 
tinued to  pay  handsome  dividends.  In  process  of  time  the  two 
daughters  of  Jencks  were  married,  and  Loker  thereupon  con- 
veyed two  hundred  of  the  shares  to  each  of  the  daughters 
respectively,  and  the  remaining  one  hundred  shares  to  Mrs. 
Jencks,  the  widow.  At  the  hearing  in  the  court  below  the  bill 
was  dismissed  as  containing  no  equity  and  the  plaintiffs  have 
appealed.  A  large  mass  of  evidence  was  introduced,  and  after 
a  careful  perusal  of  it,  I  must  say  that  the  transaction  as  nar- 
rated in  the  answer  seems  to  be  well  sustained  by  the  proofs. 
It  is  a  rule  well  known  and  established  that  the  law  will  not 
permit  a  man  to  withdraw  his  property  from  his  creditors.  Jus- 
tice must  prevail  before  generosity.  Nor  can  a  man  owing 
debts  be  permitted  to  devote  his  capital,  industry,  or  credit  to 
the  accumulation  of  property  to  be  held  by  some  third  person, 
for  his  own  use  or  that  of  his  family,  to  the  exclusion  of  his 
creditors.  In  all  such  cases  the  law  intervenes  and  goes  behind 
the  fraudulent  and  secret  transactions,  and  subjects  the  property 
or  trust  funds  to  the  payment  of  just  and  legal  demands.     Did 


llol'ERTV. 

was  a  banker 
means  for  tlie 
[encks'  propo- 
JcncKs  was 
lary  which  he 
•in<^  to  the  iin- 

the  penniless 
1  the  event  of 
D,  was  induced 
his  own  name 
:;  if  the  ad- 
;  loss  as  pos- 
:d,  then  after 
er  the  stock  to 
ccordingly  for 
jllars,  and  ad- 
dollars.  The 
dividends  first 
)ayment,  then 
and  continued 
ick,   and  what 

and  still  con- 
f  time  the  two 
lereupon  con- 
the  daughters 
lares  to  Mrs. 
below  the  bill 
plaintiffs  have 
ced,  and  after 
action  as  nar- 
by  the  proofs. 
!  law  will  not 
reditors.  Jus- 
i  man  owing 
y,  or  credit  to 

third  person, 
:lusion  of  his 
d  goes  behind 
s  the  property 
smands.     Did 


wAnnivfiiiAM  V.  i.oKEn. 


85 


the  evidence  show  that  Jencks  merely  applied  to  Lokcr  to  sub- 
scribe for  the  stf)ck  and  the  purpose  of  having  it  placed  in  his 
name,  as  a  cover  for  fraud,  while  Jencks  furnished  the  money 
to  pay  for  the  same,  and  retained  a  secret  use,  there  would  be 
no  dilliculty  in  reaching  the  stock,  and  making  it  liable  for 
Jencks'  debts.  But  the  testimony  of  Loker  is  decisive,  and 
stands  uncontradicted — that  the  stock  was  not  procured  eitiier 
with  the  money  or  credit  of  Jencks.  It  plaiidy  appears  that 
Jencks  had  no  ownership  in  it;  nor  had  he  any  control  over  it, 
only  so  far  as  Loker  chose  to  invest  him  with  that  control. 
Jencks  did  attend  the  meetings  of  the  board  of  directors  and 
attended  to  the  management  of  the  stock ;  but  it  was  because  he 
was  lawfully  authorized  thereto  by  written  power  of  attorney 
from  Loker,  and  afterward  as  the  duly  accredited  agent  of  his 
daughters.  No  creditor  of  Jencks  suffered  to  the  amount  of  a 
farthing  in  consequence  of  the  purchase  of  the  stock;  for  neither 
his  money,  credit,  nor  labor  contributed  in  the  slightest  degree 
toward  its  acquisition. 

It  is  not  shown  that  Jencks  made  any  promise  to  Loker  to 
be  responsible  or  to  reimburse  him,  and  it  is  unquestionably  evi- 
dent that  Loker  did  not  act  from  any  notion  of  Jencks'  respon- 
sibility, for  Jencks  was  a  ruined  man,  hopelessly  insolvent,  and 
barely  able  to  make  a    subsistence  for   his    family.     That  his 
views  were  consulted  and  to  a  certain  extent  deferred  to,  may 
be  admitted;   but  they  were  only  advisory  and  had  no  binding 
effect  upon  Loker.    The  assumption  that  he  assumed  ownership 
of  the  stock  and  had  absolute  power  over  and  could    require 
Loker  to  make  such  disposition  of  it  as  he  desired  is  unfounded ; 
for  Loker  states  emphatically  that  had  Jencks  applied  to  have 
the  stock  transferred  to  him,  he  could  not  have  complied  with 
the  request,  and  that  in  the  distribution  that  was  made  of  the 
stock,  Jencks  had  no  hand  in  the  matter,  but  that  it  was  exclu- 
sively his  own  work.     The    subscription  of  the  stock  by  Loker 
was  purely  voluntary,  made  from  generous  motives,  as  an  act 
of  friendship;   and  had  the  adventure  miscarried  or  proved  un- 
successful, he  would  have  had  no  legal  recourse  on   Jencks  to 
make  good  his  loss.     So  after  it  was  a  success  and  turned  out  to 
be  an  almost  unexampled  speculation,  when  we  take  into  ac- 
count the  smallness  of  the  investment,  had  Loker  seen  proper 
to  hold  on  to  the  stock  as  his  private  property,  there  is  nothing 


S'')       I.nil  lA  IIONS  TO  OWNKHSHIP  OK    PEllSONAI,  PIlOPKIlTV 


disclosed  wliich  woiiltl  liave  prevented  him  from  doiii<i  so.  No 
consideration  iiad  passed  toliim,  and  there  was  notliingon  uhicli 
to  1)asc  a  lej^al  ohii','alioM.  It  is  apparent  tiiat  he  was  hound 
in  tlie  forum  of  conscience,  luit  tiie  law  does  not  enforce  mere 
moral  or  ethical  duties.  Had  he  suffered  his  avarice  to  over- 
ride his  acts  of  fj;enerosity  and  committed  such  a  wronjr.  he 
would  have  hraiuicd  himself  as  a  dishonored  and  dishonest  man, 
hut  it  could  hardly  he  said  that  he  would  have  incurred  any  legal 
linhility.  Perhaps  he  deserves  no  credit  for  actinj;  honestly,  hut 
it  would  he  a  great  and  grievous  wrong  to  turn  his  hounty  from 
its  just  and  rightful  recipients,  and  place  it  in  the  land  of  stran- 
gers. There  is  nothing  in  the  case  which  in  the  least  militates 
against  or  impairs  the  view  here  taken. 

The  acts  of  Jencks  in  examining  the  books  and  watching  the 
general  management  of  the  stock  are  entirely  consistent  with  his 
character  of  agent  and  attorney.  Much  stress  is  laid  upon  the 
fact  of  his  depositing  large  sums  of  money  which  it  is  agreed 
arose  out  of  dividends  and  that  he  used  this  money  as  his  own. 
How  he  used  this  money  I  do  not  know,  nor  does  the  record 
enable  me  to  form  an  opinion.  It  is  shown  that  the  deposits 
were  made  in  his  name  as  agent,  and  if  he  did  use  it  I  am  unable 
to  see  that  the  plaintiffs  had  any  particular  concern  in  it.  Loker 
and  the  beneficiaries  of  the  stock  might  have  complained,  but  if 
they  made  no  objection,  the  plaintiffs  could  not  do  it  for  them. 

It  is  also  contended  that  the  stock  ought  to  be  subjected  to 
the  payment  of  the  debt  by  virtue  of  the  doctrine  of  powers ; 
that  where  a  debtor  having  a  general  power  to  appoint  property 
which  he  never  owned,  exercises  that  power  in  favor  of  volun- 
teers, the  property  in  the  hands  of  such  volunteers  is  burdened 
with  the  debts  of  the  appointer  if  it  be  necessary  for  the  satis- 
faction of  them.  But  here  it  does  not  appear  that  Jencks  had 
any  power  of  appointment;  the  evidence  is  expressly  to  the  con- 
trary. In  the  examinations  of  questions  of  fraud,  courts  will 
look  into  all  the  circumstances,  and  while  express  and  positive 
proof  is  not  required,  yet  mere  suspicion,  leading  to  no  certain 
results,  will  not  be  deemed  sudicient  ground  to  establish  fraud. 
If  there  was  anything  to  impugn  or  impeach  the  fairness  of  the 
transaction  the  evidence  most  signally  fails  to  show  it.     After 


OPEllTY. 

aiiitj;  8o.  No 
ling  oil  which 
L'  was  hoiiiul 
:;iifoicc  ineic 
[irice  to  ovci- 
a  wroii",',  lie 
siioncst  man, 
■red  any  Icf^al 
honestly,  but 
bounty  from 
and  of  stran- 
cust  militates 

watching  the 
stent  with  his 
aid  upon  the 

it  is  agreed 
y  as  his  own. 
■s  the   record 

the  deposits 
tl  am  imable 
1  in  it.  Loker 
)lained,  but  if 
'  it  for  them. 

subjected  to 
e  of  powers ; 
oint  property 
v'or  of  volun- 
i  is  burdened 
for  the  satis- 
t  Jencks  had 
iiy  to  the  con- 
:1,  courts  will 

and  positive 
to  no  certain 
tablish  fraud, 
lirness  of  the 
ow  it.     After 


WADDINGHAM    V.    LOKKU^ 


S7 


a  review  of  the  wli^le  case,  I  have  not  seen  anything  that  did  nut 

consist  vvith  perfect  fairness  and  honesty. 

Judgment  aiVirmcd. 

CoNsvi.T— Crumbaugh  v.  Kiij,'ler,  2  (Miio  St.  373 ;  IJolinnnan  v.  Combs, 
79  Mo.  315,  Goodman  v.  Wineliuul,  61  Md.  4495  Uowden  v.  Uowdeii,  75 
III.  143!  Loeschigk  v.  Bridge,  42  N.  Y.  421. 


CHAPTKR  III. 

SOME  PECULIAR  CLASSES  OF  PERSONAL 
PROPERTY. 


§  17.    Emblements. 

HENDERSON  v.  CARDWELL. 

[9  Baxt.  3S9.] 
Supreme  Court  of  Tennessee,  i8~6. 

McFaulaxd,  J. — This  was  an  action  of  replevin  brought  by 
CarcUvell  to  recover  a  lot  of  oats.  The  facts  deposed  to  by  the 
plaintiff  and  J.  B.  Hoxie,  witness  for  the  defendant,  are  that 
Hoxic  as  agent  for  Dr.  Pearne,  rented  to  the  plaintiff  certain 
premises  near  Knoxville,  being  a  house  and  about  twenty  acres 
of  land.  The  plaintiff  says  he  rented  "at  twelve  dollars  and  a 
half  a  month,  payable  in  advance,  but  by  the  year,  in  the  month 
of  March,  1S72,  and  remained  until  the  eighteenth  of  Novem- 
ber,  1S73.  I  expected  to  keep  the  place  four  or  five  years 
as  Dr.  Pearne  was  absent  from  the  country  and  I  expected  to 
keep  it  until  his  return."  Hoxie  says,  "I  rented  the  place  to 
the  plaintiff  at  twelve  dollars-,  and  fifty  cents  per  month ;  the 
renting  was  not  by  the  year  or  even  for  any  definite  time." 

In  November,  1S73,  the  plaintiff  proves  that  he  sowed  on  the 
land  a  crop  of  English  winter  oats  and  harvested  the  same  in 
June,  1S73,  when  he  plowed  in  the  stubble  so  as  to  get  another 
crop,  which  was  the  custom,  and  the  crop  was  growing  when  he 
left  the  place,  November  I,  1S73.  In  June  after  the  plaintiff 
left,  defendant  cut  and  harvested  the  oats  for  which  the  suit  is 
brought. 

Hoxie  was  offered  better  terms  by  the  defendant  who  proposed 
to  take  the  premises  for  a  longer  lease  and  this  was  the  reason 
the  plaintiff's  tena;.cy  was  terminated.  The  plaintiff  gave  up 
the  premises  without   objection  and   made  no  mention  of    the 

(SS) 


kaaa 


HENDEUSON    V.    CAUDWKI.L. 


S9 


50KAL 


brought  by 
ed  to  by  the 
lilt,  are  that 
;iti£f  certain 
twenty  acres 
oHars  and  a 
n  the  month 
of  Xovem- 
r  five  years 
expected  to 
the  place  to 
month ;  the 
time." 
awed  on  the 
he  same  in 
get  another 
ng  when  he 
he  jilaintift' 
1  the  suit  is 

!io  proposed 
3  the  reason 
:iff  gave  up 
it  ion  ot    the 


growing  oats  crop,  and  none  was  made  by  Iloxie  to  the  defend- 
ant upon  leaving.  The  question  is:  Do  these  facts  entitle  plain- 
tiff to  a  recovery  ? 

The  argument  for  the  plaintiff  is  that  he  was  a  tenant  at  will, 
and  his  term  having  been  terminated   by   his   landlord,  he  was 
entitled  to  the  growing   crop   as   emblements  and    free  egress, 
etc.,  to  cut  and  carry  the  crops  away.     The  general  principle  is 
not  doubted.     See    Bl.  Com.  126.     But  if    the  plaintiff   was  a 
tenant  from  year  to   year,  as   his  own  testimony    indicates,  he 
would  not  be  entitled    to  the  emblements  after  the   year  which 
terminated  his  tenancy.     Though  as  the  judge   charged  in   this 
case,  if  the  landlord  suffered  the  tenant  to  hold   over  after  the 
termination  of  the  first  year,  the  presumption  would  be  that  the 
tenancy  was  to  continue  for  another   year,  and  if    the  landlord 
terminated  the  tenancy  before  the  expiration  of  the  second  year, 
the  tenant  should  have  to  the  end   of  the  year  to  remove  his 
crops,  but  we   think   not  beyond  the  end  of  the  year,  as  is  to 
be  implied  from  the  judge's  charge.     For  in  a  case  of  tenancy 
from  year  to  year  where  the  term  depends  upon  a  certainty,  if 
the  tenant  holds  to  the  end  of  the  year,  he  can  not  have  emble- 
ments   unless    specially   reserved.     Broom's   Leg.  Max.   396. 
And  so  if  his  term  is    by  the    landlord    wrongfully  terminated 
before  the   year;  his  right   to   emblements  could    not   extend 
beyond  the  year,  his  right  in  this  respect  could  not  be  increased 
by  the  termination  of  his  tenancy  before  the  end  of  the  year. 

But  another  question  is  whether  the  crop  is  of  that  character 
secured  to  tenants  in  such  cases. 

When  the  tenancy  is  of  uncertain  duration  and  is  terminated 
by  the  landlord  after  the  crop  is  sown  but  before  it  is  severed 
from  the  freehold,  the  tenant  or  his  representative  shall  be  en- 
titled to  one  crop  of  that  species  only  which  ordinarily  repays 
the  labor  by  which  it  is  produced  within  the  year  within  which 
that  labor  is  bestowed,  though  the  crop  may,  in  extraordinary 
seasons,  be  delayed  beyond  that  period.  But  he  is  not  entitled 
to  all  the  fruits  of  his  labor,  as  such  right  might  be  extended  to 
things  of  a  more  permanent  nature,  such  as  trees  or  more  crops 
than  one,  since  the  cultivator  very  often  looks  for  a  compensa- 
tion tor  his  capital  and  labor  in  the  produce  of  successive  years. 
Such  is  the  law  as  stated  in  Broom's  Leg,  Max.  236  and  394. 


90 


SOMK   I'ECLLIAU    CLASSES    OF    PERSONAL    I'ROPERTY. 


Tlic  crop  claimed  in  this  case  is  oiclinarily  an  annual  crop, 
but  the  plaintiff  harvested  the  first  year's  product  of  the  sowing 
and  claims  a  second  year's  crop  of  the  same  sowing.  True,  he 
bestowed  additional  labor  to  produce  this  second  crop,  'out,  as 
we  understand  the  rule  as  above  stated,  it  goes  no  fuithcr  than 
to  give  to  the  tenant  the  benefit  of  the  law  of  emblements,  so  as 
to  secure  to  him  the  I)enefit  of  the  annual  crop  sown  by  him  be- 
fore the  termination  of  his  term.  If  this  second  annual  crop  of 
oats  had  grown  without  labor  by  the  plaintiff,  he  would  not  have 
been  entitled  to  it  after  the  expiration  of  his  term,  as  he  had 
already  harvested  the  x  rop  sown  by  him,  and  the  additional  la- 
bor bestowed  upon  it  does  not  change  the  result.  The  crop 
claimed  matured  in  1874  was  sown  in  November,  1S73.  Plow- 
ing in  the  stubble,  we  think,  Is  not  equivalent  to  sowing  another 
crop,  though  it  produce  the  same  result.  The  policy  of  the 
rule  is  the  encouragement  o^  the  tenant  in  the  cultivation  of  the 
soil  and  is  satisfied  by  giving  him,  after  the  termination  of  his 
term,  the  proceeds  of  his  annual  crop  sown  by  him. 
Let  the  judgment  be  reversed. 

Judgment  reversed. 

Consult— Rowell  v.  Uein,  44  Ind.  290,  15  Am.  Rep.  235;  Reeder  v. 
Savre,  70N.  Y.  iSo,  20  Am.  Rep.  567;  Harris  v.  Frink,  49  N.  Y.  24, 
loAm.  Rep.  318;  Uradshaw  v.  Ellis,  2  D.  &  B.  20,  32  Am.  Dec.  686; 
Lewis  V.  McNatt,  65  N.  C.  63;  Reiff  v.  Reiff,  64  Pa.  St.  134;  Stewart 
V.  Doughty,  9  Johns.  laS:  Boyer  v.  Williams,  5  Mo.  335,  32  Am.  Dec. 
324;  Towtie  V.  Rowers,  81  Mo.  492;  Adams  v.  R.  Co.,  28  S.  W.  Rep.  496, 
29  Id.  836;  Freeman  v    Underwood,  66  Me.  233. 


§  18.    Mt.nure. 

DANIELS  V.  POND. 

[21  Pick.  367;  32  Am.  Dec.  269.] 

Supreme  Judicial  Court  of  Massachusetts,  i8j8. 

•SiiAW.  C.  J. — Two  questions  arise  in  the  present  case,  the 
fiiSt,  as  to  the  form,  the  second,  as  to  the  plaintiff's  right  of 
action. 

I.  The  tenant  in  this  case  was  tenant  at  will;  and  it  seems 
a  well-settled  rule  that  if  a  tenant  at  will  commits  waste  it  is  a 


DPERTY. 

1  annual  crop, 
of  the  sowing 
ng.     True,  he 

crop,  but,  as 
0  further  than 
)lements,  so  as 
vn  by  him  be- 
innual  crop  of 
vould  not  have 
rm,  as  he  had 
additional  la- 
It.  The  crop 
,  1872.  Plow- 
iowing  another 
policy  of  the 
tivation  of  the 
fiination  of  his 
im. 

ment  reversed. 

.  235;  Reeder  v. 
k,  49  N.  Y.  24, 

2  Am.  Dec.  686; 
St.  134;  Stewart 
15,  32  Am.  Dec. 
8  S.  W.  Rep.  496, 


Us,  1838. 

esent  case,  the 
intiff's  right  of 

;  and  it  seems 
ts  waste  it  is  a 


DAMFLS    V.    POND. 


91 


determination  of  the  will  and  an  act  of  trespass,  and  that  quarc 
claiisii III  /regit  will  lie  by  the  reversioner.  I'hillips  v.  Covert,  7 
Johns.  R.  I ;   Suffcrn  v.  Townsond,  9  Johns.  R.  35. 

It  was  further  contended  that  the  plaintiff  had  not  such  a  pos- 
session of  the  manure  as  would  enable  him  to  maintain  trespass 
dc  bonis  asportatis. 

The  plaintiff,  by  the  purchase,  had  become  owner  of  the  farm 
with  all  its  incidents,  subject  only  to  the  tenancy  at  will  of  Xa- 
son.     If  the  manure  became  the  plaintiff's  at  all,  it  was  as  part 
of  and  incident  to  the  realty.      Nason  had  a  qualified  possession 
of  it  for  a  special  purpose   only,    that  is,   to   be  used  upon  the 
farm.     The  moment  he  sold  it  the  act  was  an  abandonment  of 
that  special  purpose,  he  parted  with  his  only  right  to  the  posses- 
sion or  custody  of  it,   it  vested  in  the  plaintiff  as  owner  of  the 
freehold,  and  the  right  of  possession  followed  die  right  of  prop- 
erty.   Farrantv.  Thompson,   5  B.   and  Aid.  S26;   Walcott  v. 
Pomeroy,  2  Pick.  121 ;  Ayer  v.  Bartlett,  9  Pick.  156.     As  the 
tenant's  sale  conveyed  no  title   to  the  defendant,  the  action  of 
trespass  well  lies  against  him  if  the  property  was  the  plaintiff's. 
2.     The  court  are  of  opinion  that  man  •'•»  made  on  a  farm 
occupied  by  a  tenant  at  will  or  for  years  in  tne  ordinary  course 
of  husbandry,  consisting  of  the  collections  from  the  stable  and 
barnyard,  or  of  composts  formed  by  an  admixture  of  these  with 
soil  or  other  substances,  is  by  usage,  practice,  and  the  general 
understanding  so  attached  to  and  connected  with  the  realty  that, 
in  the  absence  of  any  express  stipulation  on  the  subject,  an  out- 
going tenant  has  no  right  to  remove  the  manure  thus  collected, 
or  sell  it  to  be  removed,  and  that  such  removal  is    a  tort,   for 
which  the  landlord  may  have  redress;   and  such  sale  will  vest 
no  property  in  the  vendee.     Lassel  v.   Reed,  6  Greenl.  222; 
Kittridge  v.  Woods,  3  N.    H.   503,   14  Am.  Dec.   393.     The 
authority  of  the  first  of  these  cases  is  supposed  to  be  impaired 
by  a  subsequent  one  decided  by  the  same  court.    Staples  v.  Em- 
erv.    7    Greenl.   201.     But  the  court  do  not  profess  to  call  in 
question  the  correctness  of   their  former  decision,  but,  on  the 
contrary,  affirm  it  and  distinguish  the  latter  case  from  it. 

The  rule  here  adopted  will  not  be  considered  as  applying  to 
manure  made  in  a  livery  stable,  or  in  any  manner  not  connected 
with  agriculture  or  in  a  course  of  husbandry. 


92 


SOMF.  PKCri.IAU    CLASSICS    OF    PERSONAL    PROPERTY. 


In  the  present  case  the  defendant  had  notice,  both  from  Blake 
and  from  the  plaintiff,  of  the  chiim  and  title  of  the  plaintiff  to 
the  manure  l:>efore  the  sale;  he  tlierefore  stands  in  the  same  sit- 
uatifin  with  Xason,  neither  better  nor  worse. 

Judgement  for  tho  plaintiff. 

Consult— Snow  v.  Perkins,  60  N.  II.  493,  49  Am.  Rep.  333;  Ruck- 
man  v.  Outwater,  2S  N.  J.  (L.)  581;  .Smith  V.  Ellison,  2  Ired.  326,  38 
Am,  Dec.  697;  Lewis  v.  Jones,  17  Pa.  St.  262,  55  Am.  Dec.  552;  Good- 
rich V.  Jones,  2  Hill,  142;  Powell  v.  Rich,  41  111.  466;  Wing  v.  Gray,  36 
Vt.    261. 


§19.    Ice. 


IIIGGINS  V.  KUSTERER. 


[41   Mich.  318.] 
Sufre7>ic  Court  of  Michigan,  i8jg. 

Campbf.i.l,  C.  J. — Hifjgins  recovered  below  a  judgment 
against  Kustercr  for  the  value  of  a  quantity  of  ice.  Kusterer 
claims  that  tr  title  never  passed  to  Higgins,  and  that  the  prop- 
erty was  lawfully  acquired  by  himself  from  one  Lodcr,  who  cut 
it  on   a  po'^J  belonging  to  one  Coats,  and  sold  it  to  defendant. 

The  facts  are  briefly  these :  The  ice  in  question  was  formed 
upon  water  which  had  spread  over  a  spot  of  low  ground  partly 
belonging  to  Henry  Coats,  forming  a  basm,  the  land  being  dry 
in  summer  and  the  rest  of  the  year  overflowed  from  a  small 
brook  leading  into  it.  After  the  ice  formed,  and  m  February, 
1S7S,  Coats,  by  a  parol  bargain,  sold  all  the  ice  in  his  part  of 
the  biisin  to  Higgins  for  fifty  cents.  The  parties  at  the  time 
stood  near  by  in  view  of  the  ice,  and  the  quantity  sold  was 
pointed  out  and  the  money  paid.       The  ice  was  then  all  uncut. 

About  two  weeks  thereafter  John  Loder,  knowing  that  Hig- 
gins had  purchased  and  claimed  the  ice,  and  having  been 
w  arned  thereof  by  Coats,  offeretl  Coats  five  dollars  for  the  ice, 
wiiich  Coats  accepted,  and  Loder  cut  it  and  sold  it  to  Kusterer, 
who  had  made  a  previous  verbal  contract  with  Loder  for  it. 
Higgins  was  present  when  the  ice  was  loaded  on  Kusterer's 
sleigh,  and  forbade  the  loading  and  removal  on  the  ground  that 
he  had  purchased  it  from  Coats,  who  said  he  had  sold  it  to  Loder. 


)rERTY. 

th  from  Blake 

^le  plaintiff  to 

the  same  sit- 

tho  plaintiff. 

ep-  333!  Ruck- 
2  Ired.  326,  38 
lec.  552;  Good- 
ing V.  Gray,  36 


a  judgment 
c.  Kusterer 
lat  the  prop- 
odcr,  who  cut 
to  defendant, 
n  was  formed 
ground  partly 
ind  being  dry 
from   a  small 

m  February, 
11  his  part  of 
;  at  the  time 
tity  sold  was 
len  all  uncut, 
ing  that  Hig- 

having  been 
rs  for  the  ice, 
t  to  Kusterer, 
Loder  for  it. 
jn  Kusterer's 
le  ground  that 
Id  it  to  Loder. 


HI  GGINS    V.    KUSTERER. 


93 


The  only  question  presented  is  whether  Iliggins  was  owner 
of  the  ice. 

The  case  was  argued  very  ably  and  very  fully,  and  the  whole 
subject  of  the  nature  of  ice  as  property  was  discussed  in  all  its 
bearings.  We  do  not.  however,  propose  to  consider  any  ques- 
tion not  arising  in  the  case. 

The  record  is  free  from  any  complications  which  might  arise 
under  other  circumstances.  There  are  no  conflicting  purchas- 
ers in  good  faith  without  notice.  Loder  and  Kusterer  had  full 
notice  of  the  claims  of  Iliggins  before  they  expended  any 
money.  The  sale  to  Iliggins  was  not  a  sale  of  such  ice  as 
might  from  time  to  time  be  formed  on  the  pond,  but  of  ice 
which  was  there  already,  and  which  if  not  cut  would  disappear 
with  the  coming  of  mild  weather  and  have  no  further  existence. 
It  was  not  like  crops  of  fruit  connected  with  the  soil  by  roots  or 
trees  through  which  they  gained  nourishment  before  maturity. 
It  was  only  the  product  of  running  water,  a  portion  of  which 
became  fixed  by  freezing,  and  if  not  removed  in  that  condition 
would  lose  its  identity  by  melting.  In  its  frozen  condition  it 
drew  nothing  from  the  land,  and  got  no  more  support  from  it 
than  a  log  floating  on  the  water  would  have  had. 

Its  only  value  consisted  in  its  disposable  quality  as  capable  of 
removal  from  the  water  while  solid,  and  of  storage  where  it 
might  be  kept  at  its  solid  state,  which  could  not  be  preserved 
without  such  removal.  If  left  where  it  was  formed  it  would 
disappear  entirely. 

While  we  think  there  can  be  no  doubt  that  the  original  title 
to  ice  must  be  in  the  possessor  of  the  water  where  it  is  formed 
and  while  it  would  pass  with  that  possession,  yet  it  seems 
absurd  to  hold  that  a  product  which  can  have  no  use  or  value 
except  as  it  is  taken  away  from  the  water  and  which  may  at  any 
time  be  removed  from  the  freehold  by  the  moving  of  the  water 
or  lose  existence  entirely  by  melting,  should  be  classed  as  realty 
instead  of  personalty  when  the  owner  of  the  freehold  chooses  to 
sell  it  by  itself.  When  once  severed,  no  skill  can  join  it  to  the 
realty.  It  has  no  more  organic  connection  with  the  estate  than 
anything  else  has  that  floats  upon  the  water.  Any  breakage 
may  sweep  it  down  the  stream  and  thus  cut  off  the  property  of 
the  freeholder.  It  has  less  permanence  than  any  crop  that  is 
raised  upon  the  land,  and  its  detention  in  any  particular  spot  is 


94 


SOME   I'KcrMAR    CLASSES    OF    I'ERSOXAL    PnOI'KUTY. 


liable  to  be  broken  by  many  accidents.  It  must  be  j^athered 
while  fixed  in  place  or  not  at  all  and  can  only  be  kept  in  exis- 
tence by  cold  weather.  In  the  present  case  the  peculiar  situa- 
tion of  the  i)ond  rendered  it  likely  that  the  ice  could  not  Hoat 
awav  until  nearly  destroyed,  but  it  could  not  be  preser  cd  from 
the  other  risks  and  incidents  of  its  precarious  existence.  Any 
storm  or  shock  mi<2;ht  in  a  moment .  convert  it  into  floating 
masses  which  no  in,2;enuity  of  black-letter  metaphysics  could 
annex  to  the  freehold. 

It  does  not  seem  to  us  that  it  would  be  profitable  to  attempt 
to  determine  such  a  case  as  the  present  by  applying  the  incon- 
sistent, and  sometimes  almost  whimsical,  rules  that  have  been 
devised  concering  the  legal  character  of  crops  and  emblements. 
Ice  has  not  been  much  dealt  with  as  property  until  very  modern 
times,  and  no  settled  body  of  legal  rules  has  been  agreed  upon 
concerning  it.  So  far  as  the  principles  of  the  common  law  go, 
thev  usually,  if  not  universally,  treat  nothing  movable  as  realty 
unless  either  permanently  or  organically  connected  with  the 
land.  The  tendency  of  modern  authority,  especially  in  regard 
to  fixtures,  has  been  to  treat  such  property  according  to  its  pur- 
poses and  uses  as  far  as  possible. 

The  ephemeral  character  of  ice  renders  it  incapable  of  any 
permanent,  beneficial  use  as  part  of  the  soil,  and  it  is  only 
valuable  when  removed  from  its  original  place.  Its  connection 
•  -if  its  position  in  the  water  can  be  called  a  connection — is 
neither  organic  nor  lasting.  Its  removal  or  disappearance  can 
take  nothing  from  the  land.  It  can  only  be  used  and  sold  as 
personalty  and  its  use  only  tends  to  its  immediate  destruction. 
We  think  that  it  should  be  dealt  with  in  law  according  to  its 
uses  in  fact,  and  that  any  sale  of  ice  ready  formed,  as  a  distinct 
commodity,  should  be  held  a  sale  of  personalty  whether  in  the 
water  or  out  of  w.iter. 

We  shall  not  attempt  to  discuss  cases  where  the  bargain 
includes  future  uses  of  land  and  water  and  interests  in  ice  not 
yet  frozen.  Whether  such  dealings  are  to  be  regarded  as  leases 
or  licenses  or  executory  sales,  may  be  properly  discussed  when 
they  occur.  We  think  the  sale  in  the  present  case  was  rightly 
held  to  be  a  sale  of  personalty. 

The  judgment  must  be  affirmed,  with  costs. 

*  Judgment  affirmed. 

The  other  justices  concurred.  ' 


•KUTY. 

be  jjathered 
kept  in  exis- 
L'ciiliar  sittia- 
ild  not  Hoat 
!scr'  cd  from 
tcnce.  Any 
into  floating 
ihysics  could 

2  to  attempt 
ng  the  incon- 
it  have  been 
emblements, 
very  modern 
agreed  upon 
mon  law  go, 
ible  as  realty 
ted  with  the 
illy  in  regard 
ng  to  its  pur- 

pable  of  any 
md  it  is  only 
:s  connection 
onnection — is 
pcarance  can 

1  and  sold  as 

2  destruction, 
ording  to  its 
,  as  a  distinct 
■hether  in  the 

the  bargain 
ts  in  ice  not 
rded  as  leases 
scussed  when 
e  was  rightly 


lent  affirmed. 


PARKER    V.    MISE. 


95 


CoNSLLT-IIickey  v.  Hazard,  3  Mo.  (.\pp.)4So,  /">^(,p.  159!  f^'^S^  "•• 
Steinkrai.ss,  131  Mass.  222;  Rowell  v.  Dovle,,i3i  Mass.  474;  Hrustow  v. 
Rockport  fee  Co.,  77  Me.  100;  Wood  v.  Fowler,  :i6  Kan.  682,40  Am.  Rep. 
330;  Woodman  v.  Pitman,  79  Me.  456,  i  Am.  St.  Rep.  342;  Washington 
Ice  Co.  V.  .Shorlall,  loi  111.  46,  38  Am.  Rep.  255;  Marsh.ill  v.  Peters,  12 
How.  Pr.  218;  Richards  v.  Gautfret,  145  Mass.  4S6;  People's  IceCo,  v. 
The  Kxcclsior,  44  Mich.  249;  Ascherman  v.  Philip  Best  Brewery  Co.,  45 
Wis.  262. 


§  20,    Tame  animals— The  dog. 

PARKER  V.  MISE. 

[27  Ala.  4S0;  62  Am.  Dec.  776.] 

Supreme  Court  of  Alabama.,  1855. 

Action   for   damages    for    shooting    plaintiff's    dog.      The 
opinion  states  the  facts. 

Rice,  J. A  dog  is  a  species  of  property  for  an  injury  to 

which  an  action  at  law  may  be  sustained.  It  is  not  necessary 
for  the  maintenance  of  an  action  for  shooting  a  dog,  that  the 
dog  should  be  shown  to  have  pecmiiary  value.  Dodson  v. 
Mock,  4  Dev.  &  B.  L.  146,  33  Am.  Dec.  677;  Perry  v. 
Phipps,  10  Ire.l.  L.  259,  51  Am.  Dec.  3S7;  State  v.  Latham, 
13  W-  335  "W  ight  V.  Ramscot,  i  Saund.  S4;  2  Bla.  Com. 
393,  39^;  Lent/,  v.  Stroh,  6  S.  &  R.  34;  King  v.  Kline,  6 

Pa.  St.  31S. 

Wherever  there  is  a  wrongful  taking  of  the  property  of 
another  or  a  wrongful  injury  done  to  it,  the  law  implies  that 
the  owner  has  sustained  some  damage;  and  although  there  be 
in  fact  no  sensible  damage  from  the  loss  or  injury  of  the 
property,  or  from  an  actual  deprivation  of  its  use,  the  owner  is 
entitled  to  recover  some  damages.  And  if  the  trespass  on  the 
property  was  accompanied  by  circumstances  of  aggravjition, 
smart-money  or  exemplary  damages  may  be  assessed  by  the 
jury,  although  the  property  itself  had  no  pecuniary  value. 
Board  v.  Head,  3  Dana,  489;  Major  v.  Pulliam,  Id.  5S2  ; 
Wort  V.  Jcnkings,  14  Johns.  352;  3  Stark.  Ev.  1450-51; 
Bracegirdle  v.  Orford,  2  Mau.  &  Sel.  77;  Merest  v.  Harvey, 
5  Taunt.  442  ;  Dearing  v.  Moore,  26  Ala.  586. 


96 


SOME  PECULIAR   CLASSES   OF    PERSONAL   PROPERTY. 


Although  it  may  be  allowable  to  prove,  as  a  justification  for 
killing  a  dog,  that  the  dog  was  a  nuisance  to  the  community 
and  was  permitted  to  go  fit  large.  Dodson  v.  Mock,  4  Dev.  Sc 
B.  L.  146,  32  Am.  Dec.  677;  King  v.  Kline,  6  Pa.  St.  39S; 
yet  there  was  no  error  in  sustaining  the  objection  to  the.  question 
put  by  defendant  to  a  witness  whether,  from  his  knowledge  of 
said  dog,  he  did  or  did  not  consider  said  dog  a  nuisance. 

There  is  no  error  and  the  judgment  is  afHrmed. 

Consult — Whe.itley  v.  Harris,  4  Sneed.  468,  70  Am.  Dec.  257; 
Dodson  V.  Mock,  4  Dev.  &  IJ.  146,  32  Am.  Dec.  677;  Dunlap  v.  Snyder, 
17  llarb.  561;  State  v.  McDiitfie,  34  N.  II.  523,  69  Am.  Dec.  515;  Woolf 
V.  Clialker,  31  Conn.  121,81  Am.  Dec.  174;  Spray  v.  Ammerman,  66 
111.  309;  Uhlein  v.  Cromack,  109  Mass.  273;  Harrington  v.  Myles,  11 
Kan.  480,  15  Am.  Rep.  355. 


§  21.    Tame  animals— The  cat. 

WHITTINGHAM  v.  IDESON. 

[S  U.  C.  L.  J.  14.] 

Upper  Canada   County  Cctirt,  1861. 

Lonsdale,  J. — This  is  an  action  broughi.  by  the  plaintiff  to 
recover  damages  for  the  loss  of  his  cat,  killed  by  defendant,  a 
gamekeeper.  The  cat  was  intentionally  killed  by  the  defend- 
ant, and  at  the  time  it  was  killed  was  off  the  premises  of  the 
defendant  about  two  hundred  yards  from  his  residence.  As 
regards  the  facts  there  is  no  dispute;  but  it  was  objected  at  the 
trial  that  a  person  can  have  no  property  in  a  cat,  or,  at  all  events, 
only  a  qualified  property  so  long  as  it  remains  in  his  actual  pos- 
session ;  and  that  the  cat  in  question,  at  the  time  it  was  killed, 
being  off  the  premises  of  the  plaintiff,  he  had  no  property  in  it 
at  that  time,  and  therefore  is  precluded  from  recovering 
damages  for  its  destruction.  As  regards  the  latter  objection, 
taking  cats,  as  some  authorities  hold  and  as  Was  argued  by  the 
defendant's  attorney,  to  belong  to  the  class  of  animals  ferae 
naturae^  yet,  as  they  are  reclaimed  animals,  there  can  be  no 
pretense  for  saying  that,  because  the  cat  in  question  had  wan- 
dered two  hundred  yards  from  the  plaintiff's  house  (being  in  the 


J. 


l»EUTy, 

itification  for 
!  community 
:k,  4  Dev.  & 
l^a.  St.  39S ; 
the  question 
:novvledge  of 
5ance. 
t  is  affirmed. 

m.  Dec.  257; 
lap  V.  Snyder, 
c.  515;  Woo  It" 
Unmerinan,  66 
1  V.  Mj-les,  II 


e  plaintiff  to 
defendant,  a 
r  the  defend- 
jmises  of  the 
sidence.  As 
jjected  at  the 
at  all  events, 
is  actual  pos- 
it was  killed, 
property  in  it 
n  recovering 
:er  objection, 
irgued  by  the 
mimals  ferae 
e  can  be  no 
ion  had  wan- 
(being  in  the 


Wlinn.NGHAM    V.    IDESON. 


97 


habit,  as  was  stated  in  evidence,  of  returning  home  daily),  it  had, 
V)y  so  doing,  reverted  to  its  wild  state,  and  thereby  divested  the 
plaintiff  of  any  right  of  property  he  might  otiierwise  have  had 
in  it;  it  is  therefore  unnecessary  to  consider  that  objection 
further.  But  whether  ferae  naturae^  or,  as  otiicr  authorities 
consider  them,  doniitae  naturae,  the  point  to  be  decided  is, 
whether  cats  being,  as  well  as  dogs  and  certain  other  animals, 
what  the  law  terms,  of  a  base  nature,  by  reason  of  their  not 
being  fit  for  the  food  of  man,  are  or  are  not  the  subjects  of 
property.  For  if  they  arc,  there  is  no  doubt  that  trespass  will 
lie  for  killing  them,  since  dfi mages  may  be  recovered  in  tli;it 
form  of  action  for  any  injury  of  a  forcible  kind  done  to  any- 
thing whatever  in  which  a  man  has  property.  At  common 
law,  no  animal,  with  one  or  two  exceptions,  such  as  horses  and 
other  beasts  of  draught,  swans,  because  they  are  royal  birds, 
hawks,  and  falcons,  "on  account  of  their  nobiC  and  generous 
nature  and  courage  and  as  serving  ob  vitae  solatium  of  princes 
and  noble  and  generous  persons,  and  as  making  them  fitted  for 
great  employments,"  is  the  subject  of  theft,  whether  domitae 
naturae  ox  ferae  naturae,  unless  it  be  fit  for  food.  But  it  does 
not  follow  from  this  that  there  can  be  no  property  in  animals 
which  are  not  fit  for  food,  and  that  they  are  not  the  subject  of 
civil  remedied.  The  reason  given  by  Sir  William  Russell  in 
his  Treatise  on  Crimes  and  Misdemeanors  why  such  animals 
have  been  held  not  to  be  the  subjects  of  theft  is  "that  creatures 
of  this  kind,  for  the  most  part  wild  in  their  nature,  and  not 
serving  when  reclaimed  for  food,  but  only  for  pleasure,  ought 
not,  however  the  owner  may  value  them,  to  be  so  highly 
regarded  by  the  law  that  for  their  sakes  a  man  should  die." 
This,  no  doubt,  is  the  true  reason  why,  in  a  simple  state  of 
society,  and  when  all  thefts  above  the  value  of  a  shilling  were 
punished  with  death,  dogs,  cats,  ferrets,  and  other  like  animals 
were  excluded  from  the  law  of  larceny,  and  not  because  a 
person  could  have  no  property  in  them.  But  what  say  the 
authorities  on  the  point.?  So  far  as  I  know,  it  has  never  been 
the  subject  of  a  judicial  decision  in  any  of  the  courts  at 
Westminster. 

The  only  sources,  therefore,  to  which  we  can  have  recourse 
for  information  are  the  text-writers  of  authority ;  and  the  only 

/ 


9S  SOMK   IT.Cl'MAn    CLASSES    OK    PKIISONAL    PHOrKUTV. 

one  wlio  supports  the  view  urgcil  for  the  dcfcnclant  at  the  trial 
is  Mr.  Chitty  in  his  work  on  the  Practice  of  Law.     He  there 
lays  it  down  that  "Trespass  in  general  lies  for  takin};j  any  ani- 
mal or  l)ird  out  of  the  actual  possession  of  a  person  wlio   has 
secured   the   same;   but  no  action   lies  for  enticing   from   the 
premises  of  the  owner,  and  afterward  killing  or  injuring,  a  cat, 
which  is  not  considered  of  any  value   in  law."      He  quotes  no 
authority  for  this  statement,  and,  so  far  as  I  have  been  able   to 
ascertain,  it  is  wholly  unsupported  by  any.     The  reason  he  gives 
why  no  action  will  lie  tor  enticing  a  cat  from  the  premises  of 
its  owner  and  then  killing  it  is,  that  it  is  not  considered  of  any 
value  in  law ;  but  if  this  be  so,  one  does  not  see  why  it  should 
be  actionable  to  take  a  cat  out  of  the  actual  possession  of  a  per- 
son, since  the  cat  must  be  equally  valueless  in  the  one  case  as 
in  the  other.     Perhaps,  however,  by  "out  of  the  actual  posses- 
sion" he  means  from  off  the  premises,  or  out  of  the  manual 
possession  of  the  owner,  and  that  in  those  cases  the  action  is 
really  for  the  trespass  against  his  premises  or  person,   and  not 
for  the   taking  of   the  cat.     If  it  were  not  that  he  gives  as  a 
reason  why  an  action  will  not  lie,  that  a  cat  is  of  no  value  in 
law,  one  might  infer  that  he  intended  that  as  soon  as   a   cat 
leaves  its  owner's  premises  it  ceases  to  be  his  property.     And 
this   might  be  good  law   if  cats  were  not  reclaimed   animals; 
but  this,  at  all  events,  those  authorities  who  class  cats  amongst 
animals  ferae  naturae,  allow  them  to  be,  so  that  they  can  not 
regain  their  natural  liberty  so  long  as  they  have  animiim  rcvcr- 
tciidi,  of  which  the  mere  fact  of  their  straying  from  the  owner's 
premises  is  no  evidence  to  the  contrary.     This  reason  given, 
therefore,   by  Mr.   Chitty,  for  the  law   as   he   states  it,   is  not 
altogether  intelligible;   at  all  events  it  is  not  clearly  expressed. 
On  the  other  hand,  Blackstone,  J.,  in  his  Commentaries,  after 
remarking  that  it  is  not  felony  at  common  law  to  steal  such 
animals  ferae  naturae  though  reclaimed,  as  "are  only  kept  for 
pleasure,  curiosity,  or  whim,  as  dogs,  bears,  cats,  apes,  parrots, 
and    singing-birds,    because    their   value    is  not   intrinsic,   but 
depending  only  on  the  caprice  of  the  owner,"  adds,  but  "it  is 
such  an   invasion  of  property  as  may  amount  to  a  civil  injury, 
and  be  redressed  by  a  civil  action."     So  also  in  another  passage 
be  says:      "As  to  those  animals  which  do  not  serve  for  food, 
and  which,  therefore,  the  law  holds  to  have  no  intrinsic  value, 


PKUTV. 


WIIITTINCHAM    V.     inKSO.V. 


99 


t  at  the  trial 
r.     He  tlicre 
iiiifj  any  ani- 
on  vvli"   lias 
ng  from   tlie 
juring,  a  cat, 
le  quotes  no 
been  able   to 
ason  he  gives 
!  premises  of 
dered  of  any 
,vhy  it  should 
sion  of  a  per- 
e  one  case  as 
ictual  posses- 
t   the  manual 
the  action  is 
rson,   and  not 
he  gives  as  a 
)f  no  value  in 
oon  as   a   cat 
^perty.     And 
ned   animals ; 
cats  amongst 
they  can  not 
nimimi  rcvcr- 
n  the  owner's 
reason  given, 
ates  it,   is  not 
*ly  expressed, 
entaries,  after 
'  to  steal  such 
only  kept  for 
apes,  parrots, 
intrinsic,   but 
Ids,  but  "it  is 
a  civil  injury, 
nother  passage 
serve  for  food, 
ntrinsic  value, 


as  dogs  of  all  sorts,  and  other  creatures  kept  for  whim  or  pleas- 
ure,  though   a  man    may   have   a   bare   property    therein,    and 
maintain  a  civil  action  for  the  loss  of  them,  yet  they  are  not  of 
such  estimation,  as  that  the  crime  of  stealing  them  amounts  to 
larceny."     It  is   clear,  therefore,   that   it  was  the  opinion  of 
HIackstone,   J.,    that    there   may  be    a    property    in   cats.     In 
IJacon's    Abridgment  of    the    Law   it    is  also    laid   down    that 
"an  action  of  trespass  lies  for  taking  or  killing  a  dog;  because 
as  a   dog  is  a  tame  animal,  there  may   as  well   be  a  property 
therein  as   in   any   other  animal."     This,   though   dog  only  is 
mentioned,   is  equally  an  authority  for  a  cat  being  property; 
for  cats  and  dogs  are  always  treated  as  belonging,  in  law,  to 
the  same  class  of  animals,  and  arc  held  not  to  be  subjects  of 
larceny  for  one  and  the  same  reason.      But  in  addition  to  this 
passage   there  is   another,   in  the   sa.ne  author,  which  clearly 
includes  cats.     It  is  there  said,  "If  a  beast  or  bird  which  is  ferae 
fiaturac  have  been  reclaimed,  this  action  (trespass)  lies  for  the 
taking  or  killing  thereof,    because  there   is  a  property  in  the 
beast  or  bird."     Toller,  in  his   Law  of   Executors,   also  says: 
"Since  the  executor's  interest  is  coextensive  with  that    vested 
in  the  testator,  the  property  in  all  his  animals,  however  minute 
in  point  of  value,  shall  go  to  the  executor,  as  house-dogs,  ferrets, 
and  the  like,  or,  although  they  were  kept  only  for  pleasure, 
curiosity,  or  whim,  as  lap-dogs,  squirrels,  parrots,  and  singing- 
birds."     The  description  in  this  passage  of  the  animals  which 
will  go  to  the   executor  is  almost   in  the   words  of  IJlackstone, 
J.,   which  I  have  quoted.     It   is  true   that  it  does  not   make 
special  mention  of  cats ;  but  there  can  not  be  a  doubt  they  were 
intended  to  be  included  under  the  expression  "and  the  like." 
Lastly,  the   criminal   law    commissioners,  one  of  whom    was 
the  present  Wightman,  J.,  and  two  others,  the  late  Mr.  Starkie 
and  the  late  Mr.  Amos,  both  very  Jearned  lawyers,  and  both  of 
them  judges  of  county  courts,  and  Downing,  Professor  of  Law 
at  Cambridge,  in  their  first  report  in  observing  upon  the  reason 
why  animalsyrraf  naturae,  which  are  not  fit  for  food,  are  not  the 
subjects  of  larceny,  although  reclaimed,  say:      "It  would  seem 
that  the  rule  upon  this  subject  arose  from  the  circumstance  that 
the  animals  above  specified,  viz. :   bears,  foxes,  apes,  monkeys, 
pole-cats,  cats,  and  dogs,  etc.,  being  unfit  for  food,  were  not 
formerly  marketable  and  of  a  determinate  value.     But  they  are 


lOO       SOME  rECn.IAH    CLASSES    OK    PEHSoVAI.    I'UOl'KUTY. 

nil  now  the  subject  of  a  civil  itMiiedy  for  property.     With  this 
^reat  weight  of  authority  at,Minst  Mr.  Chitty's  single  clicliiin.  I 
have  no  hesitation    in  givinj,'  it  as  my  opinion  that  a  peri^on 
may  liave  a  property  in  a  cat,  and,  therefore,   that  an    action 
will  lie  to  recover  damajjes  for  killing  it.     There  may  be  cir- 
cumstances under  which  it  would  he  justifiahle  to  kill  a  cat; 
but  it  is  not  justillahle  to  do  sn  merely  because  it  is  a  trespasser, 
even  though  after  ;,'aine.     These  facts  alone  were  not  sufticient, 
in  my  opinion,  to  justify  the  defendant  in  killing  it.     As  con- 
nected with   the  ipiestion  of   property  in  cats,  I  may    mention 
that  cats  were  looked  upon  by  our  ancestors,  the  ancient  Britons, 
as  creatures  of  intrinsic  value,  and  the   killinj;  or  even  stealing 
of  them  a  grievous  crime,  and  subjected  the  offender  to  a  tine. 
And  if  the  cat  belon{,'ed  to  the  kind's  household,  and  was  kept 
for  the   purpose  of   destroying  the   rats   or  mice  in  the  royal 
granary,  it  was  protected  by  the  following  curious  law:     "If 
any  one  shall   steal   or  kill  a  cat,   being  the   guardian  of  the 
king's  granary,  let  the  cat  be  hung  up  by  the  tip  of  its  tail, 
with  its  head  touching   the  floor,   and  let  grams  of  wheat  be 
poured   upon  it  until  the  extremity  of  its  tail  be  covered  with 
the  wheat."     As   much  wheat  as  would  be  required  for  this 
purpose  was  the  measure  of  the  forfeiture  to  which  the  offender 

was  liable. 

Being  of  opinion  that  this  action  is  properly  brought,  I  have 
next  to  consider  whether  the  amount  of  damages  claimed,  ^2, 
is  warranted  by  the  facts  proved  in  evidence.     In   actions  of 
trespass,    unattended   by    circumstances   of    aggravation,    the 
proper   measure    of    damages,    where    any    article    has    been 
destroyed,  is  the  market  value  of  the  article  so  destroyed;  but 
in  the  case  of  an  ordinary  domestic  cat,  like  the  one  to  which 
the  present  action  refers,  it  is  very  difficult  to  say  what  is   its 
market  value,  such  cats  being  seldom  sold.     There  can  be  no 
doubt,  as  a  general  rule,  even  in  the  case  of  good  mousers,  a  few 
shillings  would  be  considered  a  sufficient  price.  Was,  then,  the 
killing  of  the  cat  in  question  attended  by  any  circumstances  of 
aggravation.'     Where   the    measure   of   damages   is  the   mere 
worth  of  the  thing  injured,  the  injury  must  be  unintentional; 
i£  willfully  occasioned,  that  would  be  a  circumstance  of  aggra- 
vation, and  would  justify  a  jury  in  giving  damages  beyond  the 
mere  money  value  of  the  thing  injured.     In  the  present  case 


!■ 


il'KUTV. 


I'LKKT    V.    IIKCKMAM. 


lOI 


'.  With  this 
j^le  clicluin,  I 
;hut  a  pertioi? 
lat  an  action 
e  may  be  cir- 

to  kill  a  cat; 
i  a  trespasser, 
not  sufticient, 

it.  As  con- 
may  mention 
cient  Hritons, 
even  stealing 
uler  to  a  fine, 
and  was  kept 
;  in  the  royal 
>us  law:  "If 
ardian  of  the 
tip  of  its  tail, 
5  of  wheat  V)e 

covered  with 
quired  for  this 
:h  the  offender 

Droupjht,  I  have 
claimed,  ;^3, 
In   actions  of 
^ravation,    the 
cle    has    been 
destroyed ;  but 
e  one  to  which 
ay  what  is   its 
here  can  be  no 
mousers,  a  few 
Was,  then,  the 
ircumstances  of 
;s  is  the  mere 
unintentional ; 
tance  of  aggra- 
ges  beyond  the 
le  present  case 


the  killing  of  the  cat  was  intentional ;  I  must,  therefore,  give 
something  for  damages  on  that  iccount,  biyond  the  few  sliil- 
lings  which  otherwise  I  should  have  considered  sutllcient;  but 
as  the  defendant  may  have  thought,  in  the  present  not  very 
clear  state  of  the  law  on  the  subject,  that  he  was  justified  in 
killing  the  cat  for  the  protection  of  his  master's  game,  I  should 
not  go  so  far  as  I  should  otherwise  have  done,  or  as  I  should 
have  done  if  he  had  killed  it  to  annoy  the  plaintiff,  or  to  gratify 
any  feeling  of  spite  or  revcn»;e.  Under  all  the  circumstances, 
I  think  if  I  direct  judgment  to  be  entered  for  lo.y.,  I  shall  do 
all  that  the  justice  of  the  case  re(|uircs.  Let  judgment,  there- 
fore, be  entered  for  that  amount. 

Consult— State  v.  Turner,  66  N.  C.  6i8;  Com.  v.  Benman,  8  Gray, 
497;  Manning  V.  Mitcherson,  69  Ga.  447.  47  Am.  Uep.  764;  Haywood 
V.  State,  4t  Ark.  479;  LUery  v.  Jones,  81  III.  403;  Osborn  v.  LewU,  2 
Allen,  207. 


§  22.    Tame  animals— The  oyster. 

FLEET  V.  HEGEMAN. 

[14  Wend.  43.] 

Supreme  Court  of  Nc-m  York,  183S' 

Fleet  sued   Hegeman    and   two   others    in    an  action    for 
trespass  in    a    justice's  court  for  taking    and   carrying    away 
two     thousand     oysters,    the     goods     and     chattels     of     the 
plaintiff.     The  defendants    pleaded    the  general    issue.     The 
cause    was    tried     by    a    jury    and    a    verdict   found   for  the 
defendants,    on   which    the  justice  rendered   judgment.     The 
plaintiff  sued  out  a  certiorari  returnable  in  the  common   pleas 
of    Queens;     which    court    affirmed    the    judgment    of     the 
justice.     Whereupon  the  plaintiff  removed  the  record  into  this 
court  by  writ  of  error.     For  the  return  of  the  justice,  it  ap- 
peared that  the  plaintiff  had  an   oyster  bed    in  Oyster  Bay,  in 
Queens  county,  of  the  extent  of   four  or  five  square  rods,  m- 
closed  with  ?^ikes,  at  the  distance  of  about  fifteen  rods  from 
the  shore  opposite  land  owned  by  him  or  his   father.     About 
two  years  before  the    trial   which  took  place  in   November, 


102       SOMK    PECULIAR    CLASSES    OF    PEUSOXAL    PROPEIlTy. 

1S33,  the  plaintiff  put  into  this  inclosurc  a  quantity  of  very 
small  oysters,  picked  up  along  the  shores;  and  shortly  previous 
to  the  trial,  the  defendants  went  :r.io  the  bed  inclosed  by  the 
plaintiffs  and  raked  up  and  took  six  hundred  or  seven  hundred 
oysters,  worth  from  $10  to  $i  i.  Five  or  six  years  pre'  ions  to  the 
trial  oysters  were  plenty  in  t!ie  bay,  but  since  then  they  were 
not  to  be  found,  except  when  they  were  planted. 

Nelson,  J. — It  has  before  been  decided  that  the  right  of 
fishing  in  this  harbor  or  bay  belonged  exclusively  to  the  inhab- 
itants of  tlie  town  of  Oyster  Bay,  derived  by  grant  from  the 
crown  of  England.  Rogers  v.  Jones,  1  Wend.  337.  In 
that  case  Rogers  was  sued  for  a  penalty  created  by  a  by-law  of 
the  town  declaring  that  "no  person  not  being  an  inhabitant  of 
Oyster  Bay  shall  be  allowed  to  rake  or  take  any  oysters  in  the 
creeks  or  harl)ors  of  the  town,  under  the  penalty  of  $12.^0  for 
each  offense."  He  had  entered  the  harbor  or  bay  and  caught  and 
carried  u,vay  a  quantity  of  oysters,  about  one  hundred  yards 
from  the  beach  ;  was  a  citizen  of  New  York,  but  not  an  inhabitant 
of  the  town.  The  defense  was  put  upon  the  ground  that  the 
bay  being  an  arm  of  the  sea  where  the  tide  ebbed  and  flowed 
was  a  common  fishery  for  all  the  citize.is  of  the  state,  and  that 
the  inhabitants  of  the  town  possessed  no  exclusive  right.  The 
court  decided  that  the  grant  to  them  by  Sir  Edward  Andross 
under  Charles  II  invested  them  with  that  right  and  sustained 
the  by-law  under  which  the  penalty  was  inflicted.  See,  also, 
6  Cow.  376. 

Both  parties  in  this  case  probably  are  inhabitants  of  the 
town,  and  therefore  are  entitled  to  the  common  right  of  fishing 
in  the  bay.  At  all  events  no  question  of  the  kind  is  raised  in 
the  case  and  we  assume  such  right  belonged  to  the  defendants. 
The  plaintiff  had  gathered  the  oysters  when  small,  some  two 
years  before  the  trial,  and  planted  them  in  a  bed  in  the  bay 
about  fifteen  rods  from  the  shore :  none  grew  there  at  the 
time,  nor  have  any  grown  since  outside  of  the  Led.  That 
a  qualified  property  in  the  oysters  was  acquired  by  the  plaintiff 
is  admitted ;  but  it  is  contended  that  the  planting  them  in  the 
bay,  where  a  common  right  of  taking  them  existed,  was  an 
abandonment  of  them  to  the  public  use.  If  so,  it  must  be  bv 
force  of  law,  for  the  case  fully  discloses   that  no  such  intent  ir» 


^Mi 


EIITY. 


FLEET    V.    HEGEMAN. 


103 


tity  of  very 
tly  previous 
losed  by  the 
•en  huncired 
vious  to  the 
n  they  were 


he  right  of 
)  the  inhab- 
nt  from  the 
!.  237.  In 
a  by-law  of 
nhabitant  of 
ysters  in  the 
f  $12.50  for 
1  caught  and 
idred  yards 
n  inhabitant 
ind  that  the 
and  flowed 
te,  and  that 
right.  The 
rd  Andross 
d  sustained 
See,  also, 

tants  of  the 

ht  of  fishing 

is  raised  in 

defendants. 

1,  some  two 

in  the  bay 

here   at  the 

Led.     That 

the  plaintiff 

them  in  the 

ted,  was  an 

must  be  by 

ch  intent  in 


point  of  fact   existed.     On  the   contrary,  they  were  deposited 
there  by  the  owner  to  improve,  or  rather  give  value  to,   them, 
and    with   reference  to   an   ulterior  use.     As  to  all   inanimate 
things  an   absolute  property  in  possession   may  be  acquired  in 
them— such  as  goods,   plate,  money;  and  if  the  article  in  ques- 
tion could    be  considered  as    'ling   within    that   description, 
there  could  be  no   doubt    the  defense   taken   would    be   unten- 
able, unless  there  was   an  abandonment  in  fact.     Oysters  have 
not  the   power  of  locomotion   any  more  than  inanimate  things, 
and   when   property  has   once  been   acquired  in  them,  no  good 
reason  is  perceived  ,vhy  it  should  not  be  governed  by  the  rules 
of   law  applicable  n  inanimate   things.     But,  it  is  contended, 
they  fall  within  the  rules  of  law   applicable  to  animals  denom- 
inated/tvw  naturae,  the  same  as  deer  in  ths   forest,  pigeons 
in  the  air,  or    fish  in  public  watcis  or   the   ocean.     A  qualified 
property  is  acquired  in   these  by  reclaiming  and  taming  them  ; 
or  by  so   confining  them  within   the  immediate  power  of    the 
owner  as  to  prevent  their  escape  and   the  use  of  their  natural 
liberty.     Deer  in  a  park,  hares  or   rabbits  in  a  warren,  or  fish 
in  private  ponds  or  trunks,    are   instance^  of  this  description. 
These,  it  is  said,  are  the  property  of  a  ma-i  no  longer  than  while 
they  contin"?   in   his   keeping  or  possession.     Manucapture  is 
not  necessary  to  acquire,  much  less  to   continue,  possession  of 
this  property.     3  Caines,    17S.     If  a  deer  or  any  wild   animal 
reclaimed  hath   a  collar  or  other  mark  put  upon  him  and  goes 
and  returns   at  pleasure  it  is  not  lawful  for  anyone    else  to  take 
him ;  though  if  he  be  long  absent  without  returning  it  is  other- 
wise.    In    all    these    cases   of   wild    animals    reclaimed,    the 
property    is    not    absolute,    but    defeasible,  by    the    animals 
resuming    their  ancient     wildness    and     going    at  large — as, 
if     the    deer     escape    from     the  park,    or    the    i.o.ies    from 
the    pond   or    trunk  and   are  found    at   lurge   in  their  proper 
element,    they    become   ferae    naturae   again    and    are  free 
to  the  first  occupant  that  may  seize  them.      But  while  they  con- 
tinue the  owner's  qualified   property  they  are  under  the  pro- 
tection of  the  law,  as  much  so  as  if  they  were  absolutely  and 
indefcasibly  his ;  and  an  action  will  lie  for  any  injury  committed. 
2  Black.  Comm.  395,  396,  397  ;  3  Co.  Litt.  294,  note  c;  7  Co. 
S6,  case  of  Swans,  S  Vin.,  tit.    Property  B. 


I04      SOME    PECULIAR   CLASSES    OF    PERSOXAL    PROPERTY. 

It  is  clear  from  the  principles  and  cases  above  mentioned 
that  the  riji^ht  to  appropriate  property  of  the  description  in 
question  does  not  depend  exclusively  upon  the  place  where 
they  are  found,  but  upon  the  fact  that  they  are  ferae  Jiaiurae 
unclaimed ;  for  though  the  deer  should  be  found  browsing  in 
his  own  forest,  and  the  pigeon  Hying  in  the  air,  or  any  of  the 
class  reclaimablc,  at  large,  if  they  have  been  in  fact  domesti- 
cated and  possess  the  animus  rcvcrtcndi,  they  are  not  common 
property,  and  the  occupant  who  takes  them  gets  no  title ;  and 
if  he  takes  them  knowing  their  condition  he  becomes  a  tres- 
passer. This  is  clear  upon  well-settled  authority.  The  right 
of  the  plaintiff  to  the  oysters  is  within  the  reason  of  these  prin- 
ciples. They  have  been  reclaimed  and  are  as  entirely  within 
his  possession  and  control  as  his  swans  or  other  water-fowl 
that  may  float  habitually  in  the  bay.  They  were  distinctly 
designated  according  to  usage,  and  besides,  the  defendants 
had  actual  information  of  the  ownership,  and  they  can  set  up 
no  greater  right  to  take  them,  because  found  in  their  native 
element,  than  tame  pigeons  in  the  air,  or  a  domesticated  deer 
upon  the  mountain.  If  the  bed  interfered  with  the  exercise  of 
the  common  right  of  fishing,  or  if  the  the  oysters  were  undis- 
tinguished among  others  belonging  to  the  public  waters,  the 
interest  of  the  owners  in  them  would  undoubtedly  be 
subservient  to  the  enjoyment  of  the  public  use.  But  the  exer- 
cise of  that  right  in  this  case  was  a  mere  pretense.  No  oysters 
of  the  natural  growth  of  the  bay,  fit  for  use,  had  been  found 
there  for  years.  The  bed  interfered  with  no  other  sort  of 
fishing  for  either  profit  or  pleasure.  The  case  presents  a  delib- 
erate and  wanton  violation  of  property  acquired  by  the  industry 
and  caie  of  another,  under  the  pretext  of  exercising  a  right  in 
common  which  the  defendants  knew  to  be  fruitless.  VVe  cer- 
tainly would  have  regretted  if  the  law  had  given  countenance 
to  such  depredations,  and  we  are  rejoiced  to  find  they  are  as 
gross  a  violation  of  the  law  as  they  are  of  the  first  principles 
of  justice.  Judgment  reversed. 

Consult — State  v.  Tavlor,  27  N.  J.  (L.)  117,  72  Am.  Dec.  347; 
Decker  V.  Fisher,  4  Barb.  592;  Brinckerhoff  v.  Starkins,  11  Barb.  248; 
Lowndes  v.  Dickerson,  34  Barb.  5S6. 


J 


PERTY. 


SOME    PECULIAR    CLASSES    OF    PERSONAL    PROPERTY,       IO5 


e  mentioned 
ascription  in 
Dlace  where 
'.rae  naturae 
browsing  in 
)r  any  of  the 
let  domesti- 
not  common 
10  title ;  and 
:omes  a  tres- 
.  The  right 
f  these  prin- 
tirely  within 
•  water-fowl 
re  distinctly 
;  defendants 
y  can  set  up 
their  native 
sticated  deer 
e  exercise  of 
were  undis- 

waters,  the 
Dubtedly  be 
Sut  the  exer- 

No  oysters 
been  found 
ther  sort  of 
ents  a  delib- 
the  industry 
ig  a  right  in 
;s.  VVe  cer- 
countenance 
.  they  are  as 
st  principles 
2nt  reversed. 

m.   Dec.  347; 
II  Barb.  24S; 


^23.    Mortuary  property. 

PIERCE  V.  PROPRIETORS  OF   SWAN  POINT 
CEMETERY. 

[10  R.  I.  227 ;  14  Am.  Rep.  667.] 
Supreme  Court  of  Rhode  Island^  1872. 

Potter,  J. — In  this  case  one  of  the  respondents,  Mrs.  Met- 
calf,  has  removed  the  body  of  her  husband  from  its  former 
place  of  burial,  in  Swan  Point  Cemetery,  and  claims  that  she 
had  the  right  to  do  so,  being,  as  his  widow,  entitled  to  the 
charge  of  it.  The  claim  is  resisted  by  his  only  child,  the  com- 
plainant. 

It   seems   strange   that   controversies  of  this   sort   have   not 
arisen  often  before.     In  Europe  burials  were  matters  of  eccle- 
siastical cognizance,   and   the  practice  of  burials  in  churches 
and  churchyards,  common.     In  many  parts  of  New  England 
the  parish  system  prevailed  and  every  family  was  considered  to 
have  a  right  of  burial  in  the  churchyard  of  the  parish  in  which 
they  lived   until  they  removed   to  another  parish.     In   Rhode 
Island,  from   the   scattered   nature  of  the  population  in  most 
parts  of  the  state,  it  was  the   early  practice  to  bury  upon  the 
family  estate,  and  when  the  estate  was  sold  the  right  was  gen- 
erally reserved.     Burial  grounds  of  this  sort  have  remained  to 
families  for  many  generations — in  many  cases,   from  the  first 
settlement;  and  the  dead  are  brought  from  a  great  distance  to 
be  buried  among  their  ancestors  and  kindred.     By  the  civil  law 
of  ancient  Rome,  the  charge  of  burial  was  first  upon  the  per- 
son to  whom  it  was  delegated  by  the  deceased ;  second,  upon 
the  scripH  hueredes  (to  whom  the  property  was  given),  and  if 
none,  then   upon  the  hacredes  legetimi  or  cognati,  in  order. 
Pothier,   Pand.    [Paris  Ed.    1S18],  vol.  3,  page  378;  Corpus 
Juris.  Digest,  lib.  11,  title  7,  1.  12,   sec.  4.      Bu'.  a  body,  once 
buried,   could  not  be  removed    except  by  the   permission,  in 
Rome,  of  the  Pontifical  College,  and  in  the  provinces  of  the 
governor.     Pothier,   ante,    and  Digest,  lib.  11,  title  7,  11.  8,  39 
and  40.     And  by  the  Roman  law   there  was  a  distinction  of 
tombs  into  familiaria,  into  which  any  member  of  the  family 


I06   SOME  PECULIAR  CLASSES  OF  PERSONAL  PROPERTY. 


might  be  admitted,  and  hereditaria,  for  one's  self  and  his 
heirs.  Digest,  lib.  ii,  tit.  7,  1.  5.  The  heirs  might  be  com- 
pelled to  comply  with  the  provisions  of  the  will  in  regard  to 
burial.  Digest,  lib.  5,  tit.  3.  1.  50.  And  the  Pontifical  Col- 
lege had  the  power  of  providing  for  the  burial  of  diose  who 
had  no  place  of  burial  in  their  own  right.  Taylor's  Civil  Law, 
quarto  1755,  p.  77. 

By  the  canon  law,  which  prevailed  in  such  matters  over 
so  large  a  part  of  Europe,  every  one  was  to  be  buried  in  the 
parish  churchyard,  or  in  his  ancestral  sepulchre  (if  any),  or  in 
such  place  as  he  might  select.  A  wife  was  to  be  buried  with 
her  last  husband,  if  more  than  one.  If  a  person  permanently 
changed  his  residence,  then  he  was  to  be  buried  in  the  parish 
churchyard  of  his  new  residence.  Corvinus's  Jes  Canonicum; 
Voctad  Pandectas  [Ed.  1731],  vol.  i,  p.  603. 

In  England,  by  their  ecclesiastical  law  by  which  this  sub- 
ject  was  regulated,  every  person  (with  exception  of  traitors, 
etc.)  had  a  right  to  be  buried  in  the  parish  churchyard.  And 
a  claim  of  right,  by  custom,  to  bury  as  near  relatives  as  possi- 
ble, was  hehl  bad.  The  whole  was  under  the  direction  of  the 
ordinary,  and  was  of  ecclesiastical  cognizance.  And  once 
buried,  the  body  could  not  be  removed  without  license  from 
the  ordinary.  Hum's  Eccl.  Law  [S  Ed.],  vol.  i,  351,  271, 
372;  Kemp  V.  Wickes,  3  Phillim.  264.  And  the  person  who 
set  up  a  monument,  or,  on  his  death,  the  heir  of  the  deceased, 
might  have  an  action  for  injury  to  it.  i  Burn,  373.  And  the 
husband  was  bound  to  bury  his  wife.  Jenkins  v.  Tucker,  i 
H.  Black,  90.  See,  for  a  full  account,  Bingham's  Christian 
Antiquities,  from  which  much  of  the  historical  matter  in  legal 
arguments  and  in  reports  has  probably  been  taken  without 
acknowledgment. 

Rex  V.  Stewart,  I3  A.  &  E.  773,  was  an  application  for  a 
mandamus  to  compel  overseers,  etc.,  to  bury  a  person.  The 
court:  "It  should  seem  that  the  individual  under  whose  roof 
a  poor  person  dies  is  bound  to  carry  the  body  decently  covered 
to  the  place  of  burial ;  he  can  not  keep  him  unburicd,  or  do 
anvthing  which  prevents  Christian  burial ;  he  can  not,  there- 
fore, cast  him  out  so  as  to  expose  the  body  tr  violation,  or  to 
offetd  the  feelings  or  endanger  the  health  of  the  living;  and  for 


iPERTY. 

self  and  his 
light  be  com- 
\n  regard  to 
ontifical  Col- 
of  those  who 
's  Civil  Law, 

matters  over 
buried  in  the 
if  any),  or  in 
;  buried  with 
permanently 
in  the  parish 
,  Canonicum; 

lich  this  sub- 
n  of  traitors, 
:hyard.  And 
fives  as  possi- 
rection  of  the 
.  And  once 
license  from 
■  I,  351,  271, 
e  person  who 
the  deceased, 
173.  And  the 
>  V.  Tucker,  i 
im's  Christian 
natter  in  legal 
taken  without 

plication  for  a 
person.  The 
ler  whose  roof 
cently  covered 
nburicd,  or  do 
:an  not,  there- 
'iolation,  or  to 
living ;  and  for 


PIERCE    V.    PROPRIETORS    OF    SWAN    POINT    CEMETERY. 


107 


the  same  reason  he  can  not  carry  him  uncovered  to  the  grave." 
The  mandamus  was  refused  for  other  reasons. 

The  c]uestion  is  new  in  this  state  and  we  do  not  know  that 
it  has  ever  occurred  in  our  mother  country,  and  but  seldom  in 
the  United  States.  That  there  is  no  right  of  property  in  a  dead 
body,  using  the  word  in  its  ordinary  sense,  may  well  be 
admitted.  Yet  the  burial  of  the  dead  is  a,  subject  which  inter- 
ests the  feelings  of  mankind  to  u  much  greater  degree  than 
many  matters  of  actual  property.  There  is  a  duty  imposed  by 
the  universal  feelings  of  mankind  to  be  discharged  by  some 
one  toward  the  dead ;  a  duty,  and  we  may  also  say  a  right,  to 
protect  from  violation ;  and  the  duty  on  the  part  of  others  to 
abstain  from  violation ;  it  may,  therefore,  be  considered  as  a 
sort  of  q/tast  property,  and  it  would  be  discreditable  to  any 
system  of  law  not  to  provide  a  remedy  in  such  a  case. 

It  is  common  to  speak  of  the  right  of  burial,  of  a  person's 
right  to  be  buried,  etc.  In  the  case  of  Rex  v.  Stewart,  before 
quoted,  the  court  says:  "Every  person  dying  in  this  ^^antry 
*  *  *  *  has  a  right  to  Christian  burial ;  and  that  implies 
the  right  to  be  carried  from  the  place  where  the  dead  body  lies 
to  the  parish  cemetery." 

In  Gilbert  y.  Buzzard,  i  Hagg.  Con.  34S,  and  s.  c,  3 
Phill.  335,  Lord  Stowell  (Sir  William  Scott)  says:  "The  rule 
of  law  which  says  that  a  man  has  a  right  to  be  buried  in  his 
own  churchyard  is  to  be  found  most  certainly  in  many  of  our 
authoritative  text-writers;  but  it  is  not  quite  so  easy  to  find  the 
rule  which  gives  him  the  right  of  burying  a  large  chest  or  trunk 
in  company  with  himself.  That  is  no  part  of  his  original  and 
absolute  right  nor  is  it  necessarily  involved  in  it.  That  right 
strictly  taken  is  to  be  returned  to  his  parent  earth  for  dissolu- 
tion and  to  be  carried  thither  in  a  decent  and  inoffensive  man- 
ner. When  these  purposes  are  answered,  his  rights  are  perhaps 
fully  satisfied  in  the  strict  sense  in  which  any  claim  in  the 
!iature  of  an  absolute  right  can  be  deemed  to  extend.  So  Dr. 
Burn,  quoting  Gibson's  Condex  Juris.  Ecclesial  Anglicanae, 
says:  "Every  parishioner  hath  and  had  always  a  right  to  be 
buried  in"  the  parish  burial  ground,    i  Burn's  Eccl.  Law,  257. 

Most  people  look  forward  to  the  proper  disposition  of  their 
remains  and  it  is  natural  that  they  should  feel  an  anxiety  on  the 
subject.     And  the  right  of  a  person  to  provide  by  will  for  the 


loS      SOME    PECULIAR    CLASSES    OF    PEUSONAL    PROPERTY. 

disposition  of  his  body  has  been  generally  recognized.     We 
have  seen  that  by  the  canon  law  a  person  had  the  right  to  direct 
his  place   of  sepulture.     Voet,  ante.     Now,  strictly  speaking 
according  to  the  strict  rules  of  the   old  common  law,  a  dead 
man  can  not  be  said  to  have  rights.     Yet  it  is  common  so  to 
speak,  and  the  very  fact  of  the  common  use  of  such  language, 
and  of  its  being  used  in  such  cases  as  we  have  quoted,  justifies 
us  in  speaking  of  it  as  a  right  in  a  certain  qualified  sense,  and 
a  right  which   ought  to  be  protected.     See  i  Chitty's  General 
Practice,  50,  note.     And   a  sort  of  right  of  custody  over  or 
interest  in  the  dead  body,  in  the  relatives  of  the  deceased,  is 
recognized  in  the  statutes  of  many  of  our  states.     The  laws  of 
Indiana  (R.  S.,  chap.   7,  sec.  37)  prohibit  the  removal  of  a 
dead  body  without  the  consent  of  the-  near  relatives,  or  without 
the  consent  of  the  deceased,  given  in  his  lifetime.     See,  also. 
State   V.  Tate,  6  Blackf.    tii.     The   lav/s   of   Louisiana  and 
California  recognize  the  interest  of  the  relatives  of  the  deceased 
in  the  body.     Tyler's  Am.   Eccl.   Law,   sees.  1153  and  123S. 
See,  also,  the  laws  of  Connecticut.     Laws  of  1849,  p.  250,  sec. 
137:  Laws  of  Vermont,    1S62,  p.  129,  title  11,  chap.  iS,  sec. 
8;   Laws  of   Ohio,   Swan's  Revised   Statutes,   1S54,   p.   294. 
And   see,   also,  the  late  English  Statute  of   Burials,  15  and  16 
Victoria,  chap.  85,  sees.  32  and  33;   Baker's  Laws  relating  to 
burials.     See   as  to  the  various   meanings  of  the  word  right, 
Austin's  Province  of  Jurisp.,  vol.  i,  sec.  6,  p.  292.     See,  also. 
Bill  of  Rights,  sec.  5.     "Every  person  ought  to  find  a  certain 
'remedy  for  all  injuries,"  etc. 

It  has  been  the  boast  of  many  of  the  sages  of  the  law  that 
there  is  no  wrong  without  a  remedy.     Says  Lord  Coke  (Co. 
Lit.  197  b.,   I   Thomas's  Coke,  902):   "The  law  wills  that  in 
every   case  where  a  man  is  wronged  and  endangered,  he  shall 
have   a  remedy."     Lord   Holt,   in  Ashby  v.    White:   "If  the 
plaintiff  has  a  right,  he  must  of  necessity  have  a  means  to  vin- 
dicate and  maintain  it."  .   .   .     "It  is  a  vain  thing  to  imagine  a 
right  without  a  remedy."     Lord  Raym.  938;  s.  c,  6  Modern, 
45  ;  Judgment  of  Lord  Holt  in  Ashby  v.  White,  etc.,  reprinted, 
iS;?7-    •  Smith's  Lead.  Cases,  342,  356.     And  see  Lord  Abin- 
t;.    '        '  f  ro'-etation  of  the  old   mi\-x\m,  '■'■Boni  judicis   est  am- 
t'<'.i:\i    .     -  didioncm:"     And  the  late  Chief  Justice  Ames  has 
.  f\\    <■    :m»v  lid   it  in   his   opinion  in  the    case  of  Reynolds  v. 


'ERTY. 

nized.     We 
^ht  to  direct 
tly  speal--in<T 
law,  a  dead 
mm  on  so  to 
:h  language, 
ited,  justifies 
d  sense,  and 
:ty's  General 
ody  over  or 
deceased,  is 
The  laws  of 
emoval  of  a 
s,  or  without 
See,  also, 
ouisiana  and 
the  deceased 
53  and  1338. 
,  p.  350,  sec. 
hap.  18,  sec. 
S54,   p.   294. 
Is,  15  and  16 
rs  relating  to 
s  word  right, 
s.     See,  also, 
ind  a  certain 

the  law  that 
d  Coke  (Co. 
r  wills  that  in 
ered,  he  shall 
'^hite:  "If  the 
means  to  vin- 
r  to  imagine  a 
3.,  6  Modern, 
tc,  reprinted, 
;e  Lord  Abin- 
•dtcts  est  am- 
tice  Ames  has 
f  Reynolds  v. 


PIERCE    V.    PROPRIETORS    OF    SWAN    POINT    CEMETERY.        tOC) 

Hoxie,  6  R.  I.  463,  468,  that  it  is  perfectly  understood  that 
there  can  not  be  a  wrong  under  our  jurisprudence  for  which  the 
law  docs  not  in  some  form  provide  a  remedy. 

And  in  the  report  upon  the  codification  of  the  laws  in  Mas- 
sachusetts,   December,    1836,  made  by  Joseph  Storey,  Theron 
Metcalf,    Simon    Greenleaf,    Luther   P.  Cushing,  and    C.    E. 
Forbes,    they    say:   "In    truth   the    common   law   is  not  in  its 
nature  and  character  an  absolutely  fixed,  inflexible  system,  like 
the  statute  law,  providing  only  for  cases  of  a  determinate  form, 
which  fall  within  the  letter  of  the  language,  in  which  a  particu- 
lar doctrine  or  legal  proposition  is  expressed.     It   is  rather  a 
system  of  elementary  principles  and  of  general  juridical  truths, 
which   are  continually  expanding  with  the  progress  of  society, 
and  adapting  themselves  to  the  gradual   changes  of  trade  and 
commerce  and  the  mechanic  arts  and  the  exigencies  and  usages 
of  the  country.     There  are   certain  fundamental   maxims  in  it 
which  are  never  departed  from.     There  are  others,  again,  which 
though  true  in  a  general  sense  are  at  the  same  time  susceptible 
of  modification   and  exceptions  to  prevent   them   from  doing 
manifest  wrong  and  injury. 

"When   a  case  not  affected  by  any  statute   arises  in  any  of 
our  courts  of  justice,  and  the    facts   are    established,  the  first 
question  is,  whether  there  is  any  clear  and  unequivocal  princi- 
ple of  the  common  law  which  directly  and  immediately  governs 
it  and  fixes  the  rights  of  the  parties.  If  there  be  no  such  principle 
the  next  question  is  whether  there  is  any  principle  of  the  com- 
mon law  which  by  analogy  or  parity  of   reasoning  ought  to 
govern  it.     If   neither  of  these    sources   furnishes    a   positive 
solution  of   the    controversy,  resort  is  next  had   (as   in  a  case 
confessedly  new)  to  the  principles  of  natural  justice,  which  con- 
stitute  the   basis  of  much   of  the  common   law,  and  if  these 
principles  can  be  ascertained  to  apply  in  a  full  and  determined 
manner  to  all  the  circumstances,  they  are  adopted,  and   decide 
the  rights  of  the  parties.     If  all  these  sources  fail,  the  case  is 
treated  as  remediless  at  the  common  law,  and  the  only  relief 
which  remains  is  by  some  new  legislation  by  statute  to  operate 
upon  future  cases  of  the  like  nature." 

The  very  origin  of  equity  in  Rome  and  in  England  was  that 
there  was  a  wrong  for  which  there  was  no  remedy,  or  no  ade- 
quate remedy  at  law.   i  Story's  Eq.  Jur.,  sees.  49  and  50.  And 


no       SOME    PKCUMAR    CLASSES    OF    PERSONAL    PROPERTY. 


wc  can  not  hut  approve  the  hmguage  of  Lord  Cottenliam  in 
Walworth  v.  Holt,  4  Myl.  &  C.  619;  "I  think  it  the  duty  of 
this  court  to  adapt  its  practice  and  course  of  proceeding  to  the 
existing  state  of  society :  and  not,  by  too  strict  an  adherence  to 
forms  and  rules  established  under  different  circumstances,  to 
decline  to  administer  justice  and  enforce  rights  for  which  there 
is  no  other  remedy.  *  •  •  If  it  were  necessary  to  go  much 
further  than  it  is,  in  opposition  to  some  highly  sanctioned  opin- 
ions, in  order  to  open  the  door  of  justice  in  this  court  to  those 
who  can  not  obtain  it  elsewhere,  I  should  not  shrink  from  the 
responsibility  of  doing  so."  Quoted  in  Story's  Eq.  Jur.,  vol.  i, 
sec.  671,  note. 

In  Kurtz  v.  Beatty  &  Ritchie,  2  Pet.  566,  5S4,  which  was  to 
obtain  an  injunction  to  prevent  the  removal  of  tombs  and 
graves,  Judge  Storey,  in  giving  the  opinion  of  the  United  States 
supreme  court,  says:  "It  is  a  case  where  no  action  at  law  •  •  ♦ 
could  afford  an  adequate  and  complete  remedy.  *  *  *  The 
remedy  must  be.  sought,  if  at  all,  in  the  protecting  power  of  a 
court  of  chancery — operating  by  its  injunction  to  preserve  the 
repose  of  the  ashes  of  the  dead  and  the  religious  sensibilities 
of  the  living." 

In  cases  like  the  present  no  common  law  action  could  avail 
much.  The  owner  of  the  lot  might  have  trespass  quaere  clausiun, 
etc.,  but  he  could  only  recover  damages  in  money.  He  might 
have  an  action  of  detinue  for  the  body,  or  so  much  earth,  etc., 
taken  away;  or  perhaps  might  have  replevin ;  if  buried  by  per- 
mission on  another's  land,  it  might  perhaps  be  considered  a 
license  or  easement,  for  disturbance  of  which  the  person  who 
procured  the  burial  might  have  an  action  ;  but  it  is  easy  to  see 
that  neither  form  of  action  affords  a  sufficient  remedy,  or  could 
with  any  certainty  restore  the  body  to  the  proper  custody. 

Equity  only  can  give  a  full  and  complete  remedy,  and  we 
think  the  jurisdiction  is  fully  adequate  to  it. 

It  seems  the  deceased,  Mr.  Metcalf,  purchased  a  burial  lot 
and  was,  on  his  decease,  with  the  consent  of  his  widow,  one  of 
the  respondents,  and  the  complainants  say  they  believe  accord- 
ing to  his  own  wishes,  buried  in  it.  The  respondent  jNIrs. 
Metcalf  has  demurred  to  the  bill  thus  admitting  these  alleged 
facts  for  the  purpose  of  the  present  hearing.  Taking  these 
allegations  as  uncontradicted  and  true,  as  the  body  was  removed 


PERTY. 

'ottenham  in 
the  duty  of 
ediiig  to  the 
idlierence  to 
instances,  to 
which  there 
to  go  much 
tioned  opin- 
3urt  to  those 
nk  from  the 
Jur.,  vol.  I, 

vhich  was  to 
tombs   and 

Jnited  States 
at  law  •  *  * 
*  •  *    The 

;  power  of  a 

preserve  the 
sensibilities 

I  could  avail 
ere  clausnm^ 
He  might 
I  earth,  etc., 
iried  by  per- 
considered  a 
person  who 
s  easy  to  see 
dy,  or  could 
istody. 
edy,  and  we 

I  a  burial  lot 
idow,  one  of 
ieve  accord- 
indent  !Mrs. 
hese  alleged 
^aking  these 
vas  removed 


PIEIICE    V.    PIIOPIUETOUS    OF     SWAN    POINT    CEMETEHY.        I  I  I 

by  the  widow  without  the  consent  of  the  child,  from  a  place 
where  it  was  deposited  by  his  own  wishes  and  her  consent,  we 
think  it  should  be  restored  to  the  place  whence  it  came. 

It  is  not  necessary  to  decide  at  present  what  might  have  been 
done  if  the  child  had  assented,  or  what  the  child  might  do  of 
herself.  And  from  the  view  we  take  of  the  case  it  is  of  less 
consecjuence  to  whom  the  custody  is  given. 

Although,  as  we  have  said,  the  body  is  not  property  in  the 
usually  recognized  sense  of  the  word,  yet  we  may  consider  it 
as  a  sort  of  quasi  property,  to  which  certain  persons  may  have 
rights  as  they  have  duties  to  perform  toward  it,  arising  out  of 
our  common  humanity.  But  the  person  having  charge  of  it 
can  not  be  considered  as  the  owner  of  it  in  any  sense  whatever; 
he  holds  it  only  as  a  sacred  trust  for  the  benefit  of  all  who  may 
from  family  or  friendship,  have  an  interest  in  it,  and  we  think 
thai  a  couit  of  equity  may  well  regulate  it  as  such,  and  change 
the  custody  if  improperly  managed.  So  in  the  case  of  custody 
of  children,  certain  persons  are  frima  facie  entitled  to  their 
custody,  yet  the  court  will  interfere  and  regulate  it.  We  think 
these  analogies  furnish  a  rule  for  such  a  case,  and  one  which 
will  probably  do  most  complete  justice,  as  the  court  could 
always  interfere  in  case  of  improper  conduct,  e.  g.,  preventing 
other  relatives  from  visiting  the  place  for  the  purpose  of  indul- 
gence of  feeling,  or  testifying  their  respect  or  affection  for  the 
deceased. 

The  complainants  further  charge  that  after  the  body  had 
been  surreptitiously  disinterred  by  Mrs.  Metcalf,  and  had  been 
surreptitiously  removed  by  her  to  the  newly  prepared  grave, 
the  superintendent  of  the  defendant  corporation,  upon  his  at- 
tention being  then  for  the  first  time  called  to  the  matter  while 
the  body  was  thus  exposed,  did  not  direct  its  immediate  re- 
interment in  the  lot  from  which  it  had  been  taken,  but  permit- 
ted and  allowed  it  to  be  interred  fn  the  new  grave  which  Mrs. 
Metcalf  had  had  prepared  for  it  in  the  lot  tr>  which  it  had  been 
removed ;  and  therefore  pray  that  said  corporation  may  be  di- 
rected to  restore  the  remains  to  the  lot  from  which  they  were 
removed,  and  that  said  Mrs.  Metcalf  be  enjoined  from  inter- 
fering therewith.  The  defendant  cemetery  corporation  has 
answered,  admittingthe  statements  of  the  bill,  and,  while  denying 
the  jurisdiction  of  the  court  to  dnect   or   control    the    manage- 


112       SOME    PECULIAR    CLASSES    OK    I'EHSONAL    Pnoi'KKTY. 

ment  of  the  internal  affairs  of  the  corporation,  submitting  to 
execute,  or  permit  to  be  executed,  such  decree  as  the  court  may 
mal<e  in  tlie  premises. 

Consent,  of  course,  can  not  give  jurisdiction,  but  we  tiiink 
there  is  no  doubt  of  the  jurisdiction  of  the  court  in  tliis  case. 
This  corporation  holds  these  lands  for  certain  purposes  and  for 
those  only.  They  have,  no  doubt,  a  certain  control  over  the 
property,  but  that  control  is  to  be  exercised  in  such  manner  as 
to  carry  out,  at  least  not  to  interfere  with,  the  legal  rights  of 
those  who  hold  burial  lots  under  them.  They  are  in  fact  trus- 
tees for  certain  purposes,  and  when  the  trust  is  not  properly 
executed,  this  court  has  the  same  jurisdiction  to  compel  its 
execution  as  in  case  of  any  other  trust. 

The  demurrer  of  Mrs.  Metcalf,  the  respondent,  is  overruled. 
She  can  answer  and  contest   the    allegations  of    the  bill  if   she 

chooses  to  do  so. 

Demurrer  overruled. 
Consult— Bogert  V.  Indianapolis,  13  Ind.  138;  VVynkoop  v.  Wynkoop, 
42  Pa.  St.  29s,  82  Am.  Dec.  516;  Patterson  v.  Patterson,  59  N.  Y. 
574,  17  Am.  Rep.  384;  GrillUh  v.  R.  Co.,  23  S.  C.  25,  55  Am-  Rep.  i; 
Durell  V.  Hay  ward,  9  Griiy,  24S,  69  Am.  Dec.  284;  Peters  v.  Peters,  43  N. 
J.  (Eq.)  140;  State  v.  Doepke,  68  Mo.  208,  30  Am.  Rep.  785. 


§  24.    Fixtures— Actual  annexation. 

SNEDEKER  v.  WARRING. 

[12  N.  Y.  170]. 
Court  of  Appeals  of  New  Tork,  1854. 

Appeal  from  judgment  of  the  supreme  court. 

James  Thom,  the  sculptor,  being  the  owner  of  a  farm  situate 
in  the  county  of  Rockland  in  the  year  1S42,  executed  a 
mortgage  upon  it  to  one  Crum.  Subsequently  he  erected  upon 
it  a  dwelling  house  of  red  stone  in  the  Gothic  style,  and  at  the 
same  time  erected  a  sundial,  and  prepared  a  base  in  the  lawn 
in  front  of  the  house  and  placed  upon  the  latter  a  colossal 
statue  of  Washington.  In  1849  the  defendant  purchased  the 
farm  and  its  appurtenances  on  a  sale  thereof   by  virtue   of  the 


dM 


I'KKTV. 

ibmitting  to 
le  court  may 

it  we  tliiiik 
n  tliis  case. 
OSes  and  for 
ol  over  the 
1  manner  as 
E[al  rights  of 
in  fact  trus- 
iiot  properly 
I    compel    its 

is  overruled. 
le  bill  if   she 

cr  overruled, 
p  V.  Wynkoop, 
on,  59  N.  Y. 
;  Am,  Rep.  I ; 
V.  Peters,  43  N. 
785. 


a  farm  situate 
,  executed  a 
;  erected  upon 
e,  and  at  the 
;  in  the  lawn 
;er  a  colossal 
purchased  the 
virtue   of  the 


SNKDEKF.Il    V.     W  AH  RING. 


»'3 


mortgage,  and  took  possession  of  the  premises,  the  dial  and 
statue  then  being  where  they  were  originally  erected.  Thorn 
executed  a  second  mortgage  on  the  farm  after  the  erection  of 
the  dial  and  statue  and  the  defendant  became  the  owner  of  the 
mortgage  by  assignment  at  the  time  he  purchased  the  premises, 
at  the  sale  by  virtue  of  the  first  mortgage.  In  1S47  the  sheriff 
of  Rockland  county,  by  virtue  of  an  execution,  issued  to  him 
on  a  judgment  recovered  during  the  year  against  Thorn,  sold 
the  dial  and  statue  as  personal  property  and  they  were  purchas- 
ed by  the  plaintiff.  The  defendant  havmg  refused  to  allow  the 
plaintiff  to  remove  the  dial  and  statues,  this  suit  was  brought  to 
recover  their  value. 

On  the  trial  before  justice  S.  B.  Strong  at  the  Rockland  county 
circuit,  in  December,  1849,  the  above  mentioned  facts  appeared. 
It  was  also  proved  that  the  dial  was  three  or  four  feet  high, 
supported  or  constructed  upon  a  block  of  red  stone,  square  at 
the  top  and  in  the  form  of  a  pedestal  at  the  bottom  and  the 
intermediate  part  shaped  to  resemble  a  column,  eighteen  inches 
in  diameter  in  the  middle  and  eight  inches  in  diameter  at  each 
end.  The  pedestal  rested  upon  aflag  which  covered  the  mouth 
of  a  well,  from  which  water  was  conducted  through  pipes  un- 
der ground  into  the  house.  This  block  of  stone  on  which  the 
dial  was  constructed  was  not  fastened  to  the  flag  on  which  it 
rested  and  was  retained  in  its  position  merely  by  its  weight, 
which  was  about  two  hundred  pounds.  The  dial  was  in  front 
of  the  house  and  between  the  latter  and  the  statue. 

The  counsel  for  the  defendant  requested  the  court  to  nonsuit 
the  plaintiff  on  the  giound  that  the  statue  and  dial  were  a  part 
of  the  real  estate.  The  motion  was  denied ;  defendant's  counsel 
excepted.  The  counsel  for  the  defendant  also  requested  the 
court  to  rule  and  decide  as  to  each  of  these  articles  that  it  was 
a  part  of  the  freehold  and  not  personal  property;  the  court 
declined  to  so  rule  and  defendant's  counsel  excepted.  The 
cause  was  submitted  to  the  jury  under  instructions  from  the 
court  which  were  excepted  to  by  the  defendant's  counsel ;  but 
in  the  view  taken  of  the  case  by  this  court  the  charge  and  excep- 
tions thereto  need  not  be  stated.  The  jury  rendered  a  verdict 
in  favor  of  the  plaintiff  for  the  value  of  the  dial  and  the  statue, 
assessing  the  value  of  the  former  at  $25  and  the  latter  at  $1,650. 
8 


'M 


SOMI.    I'ECl'I.IAn    CLASSES    OF    PERSONAL    PROPERTV. 


Till-  juilsiiniMit  entered  iip(in  the  verdict  was  affirmed  by  the 
Huprciiu-  c.nt  m  the  second  district.  The  defendant  appealed 
to  tliis  court. 

Paukek,  J.— The  facts  in  this  case  arc  undisputed,  and  it  is 
a  question  of   law  whether  the  statue  and  sundial    were  real  or 
personal  property.     The  plaintiffs  claim  they  arc  personal  prop- 
erty, having,'  purchased  them  as  such  under  an  execution  against 
Thorn.     The  defendant  claims  they  arc  real  property,  having 
bought  the  farm  on  which  they  were   erected   at   a  foreclosure 
sale  under  a  mortgage,  executed  by  Thorn   before  the   erectir  - 
of   the  statue  and  sundial,  and  also  as  mortgagee  in  possession 
of  another   mortgage,  executed    by  Thoni  after   their  erection. 
The  claim  of  the   defendant   under  the   mortgage   sale   is  not 
impaired  by  the  fact  that  the  property  in  controversy  was  put  on 
the  place  after  the  execution  of  the  mortgage.     Corliss  v.  Van 
Sagin,  29  Me.  115;  Winslow  v.  Merchants'  Ins.  Co.,  4  Mete. 
306.     Permanent  erections  and  other  improvements  made  by 
the  mortgagor  on   the   land   mortgaged   become   a  part  of  the 
realty,  and  are  covered  by  the  mortgage. 

In  deciding  whether  the  property  in  controversy  was  real  or 
personal,  it  is  not  to  be  considered  as  if  it  were  a  question 
arising  between  landlord  and  tenant,  but  it  is  governed  by  the 
rules  applicable  between  grantor  and  grantee.  The  doubt 
thrown  upon  this  point  by  the  case  of  Taylor  v.  Townscnd,  8 
Mass.  411,  is  entirely  removed  by  the  late*-  authorities,  which 
hold  that,  as  to  fixt.  2s,  the  same  rule  prevails  between  mort- 
gagor and  mortgagee  as  between  grantor  and  grantee.  15  Mass. 
159;  4  Mete.  306;  3  Edw.  Ch.  R.  246;  i  Ililli.ird  on  Mort- 
gages, 294,  note  f,  and  cases  there  cited ;  and  see  Bishop  v. 
Bishop,  II  N.  Y.  123,  126. 

Governed,  then,  by  the  rule  prevailing  between  grantor 
and  grantee,  if  the  statue  and  dial  were  fixture-:.,  actual  or 
constructive,    they    passed    to   the    defendant   as   part   of   the 

realty. 

No  case  has  been  found  in  either  the  English  or  American 
courts  deciding  in  what  cases  statuary  placed  in  a  house  or  in 
grounds  shall  be  deemed  real  and  in  what  cases  personal  prop- 
erty. This  question  must,  therefore,  be  determined  upon 
principle.     All  will  agree  that  statuary  exposed  for   sale  in  a 


PERTV. 


sxrnnKF.n  v.  WAnnixo. 


"5 


rmcil   by  the 
iUit  appealed 


:cd,  and  it  is 
were  real  or 
crsoiial  pmp- 
;iition  ayainst 
perty,  having 
a  foreclosure 
the  ercctir  - 
in  possession 
lieir  erection, 
e  sale  is  not 
sy  was  put  on 
orliss  V.  Van 
Co.,  4  Mete, 
cnts  made  by 
\  part  of  the 

y  was  real  or 
re  a  cjucstion 
verned  by  the 
.     The   doubt 

Townsend,  S 
lorities,  which 
Detween  mort- 
itee.  15  Mass. 
lard  on   Mort- 

see  Bishop  v. 

tween  grantor 
re;>,  actual  or 
s   part  of  the 

or  American 
1  a  house  or  in 
personal  prop- 
ermined  upon 
:d  for   sale  in  a 


workshop,  or  wherever  it  may  bo  before  it  shall  be  perma- 
nently placed,  is  personal  projierty;  nor  will  itbi-  coutroverti-d 
that  where  statuary  is  placed  u])oii  a  iiuihlin},',  or  so  coiuiectod 
with  it  as  to  be  consideroil  part  of  it,  it  will  be  docaicd  real 
property,  and  pass  with  a  deed  of  the  land.  Hut  the  duubt  in 
this  case  arises  from  the  peculiar  position  and  cliaraLter  of  this 
statue,  it  being  placed  in  a  courtyard  before  the  house,  on  a 
base  erected  on  an  artilicial  niouiul  raised  for  the  purpose  of 
supporting  it.  The  statue  was  not  fastened  to  the  base  by  cither 
clamps  or  cement,  but  it  rested  as  ilrmly  on  it  by  its  own  vveij,dit, 
which  was  three  or  four  tons,  as  if  otherwise  atlixed  to  it.  The 
base  was  of  masonry,  the  seams  being  pointed  with  cement, 
though  the  stones  were  not  laid  in  either  cement  or  mortal ,  and 
the  mound  was  an  artificial  and  permanent  ei^ection,  raised  some 
two  or  three  feet  above  the  surrounding  land,  with  a  substantial 
stone  foundation. 

If  the  statue  had  been  actually  affixed  to  the  base  by  cement 
or  clamps,  or  in  any  other  manner,  it  would  be  conceded  to  be 
a  fixture,  and  to  belong  to  the  realty.  But  as  it  was,  it  could 
have  been  removed  without  fracture  to  the  base  on  which  it 
rested.  But  is  that  circumstance  controlling?  A  building  of 
wood,  weighing  even  less  than  this  statue,  but  resting  on  a 
substantial  foundation  of  masonry,  would  have  belonged  to  the 
realty.  A  thing  may  be  as  Jirnily  affixed  to  the  land  by 
gravitation  as  by  clatnps  or  cement.  Its  character  may  depend 
much  upon  the  object  of  its  erection.  Its  destination,  the  in- 
tention of  the  person  making  the  erection,  often  exercise  a  con- 
trolling influence,  and  its  connection  with  the  land  is  looked  at 
principally  for  the  purpose  of  ascertaining  whether  that  intent 
was  that  the  thing  in  question  should  retain  its  original  chattel 
character,  or  whether  it  was  designed  to  make  it  a  permanent 
accession  to  the  lands.  • 

By  the  civil  law,  columns,  figures,  and  statues,  used  to  spout 
water  at  fountains,  were  regarded  as  immovable,  or  real.  (Pan- 
dects, lib.  19,  tit.  I,  sec.  17,  vol.  7,  by  Pothier,  107);  though  it 
was  inferred  that  statues  resting  on  a  base  of  masonry  were  not 
immovable,  because  they  were  there,  not  as  part  of  the  con- 
struction, but  as  ornaments.  Corp.  Jur.  Civ.,  by  Kreigel,  lib.  19, 
tit.  I,  sec.  17;  Poth.  Pand.  109;  Burrill's Law  Diet  ,  "Affixus." 
But  Labeo  held  the  rule  to  be  "ca  quae  perpetui  usus  causa  in 


Il6       SOME    PECULIAR    CLASSES    OF    PERSONAL    PROPERTY. 

acdificiis  sunt,  acdifcii  esse :  quae  vcro  ad  pracsens,  non  esse 
acdificii;"  thus  making  the  kind  of  property  depend  upon  the 
question  whether  it  was  designed  by  the  proprietor  to  be  per- 
manent or  temporary,  or,  as  it  was  generally  called  by  civilians, 
"its  destination."    Corp.  Jur.  Civ.,  by  Kreigel,  lib.  19,  tit.  i, 

sec.  17. 

And  Pothier  says  that  when,  in  the  construction  of  a  large 
vestibule  or  hall,  niches  are  made,  the  statues  attached  ("at- 
tachees")  to  those  niches  make  part  of  the  house,  for  they  are 
placed  there  ad  intcgrandam  domum.  They  serve  to  complete 
that  part  of  the  house.  Indeed,  the  niches  being  made  only  to 
receive  the  statues,  there  will  fail  to  be  anything  in  the  vestibule 
without  the  statues;  and,  he  says,  it  is  of  such  statues  that  we 
must  understand  what  Papimanus  says:  ''Sigillaet  statuae 
affixae,  instriimento  domus  non  continentur,  scd  domus  portto 
sunt.     Pothier  de  Communaute,  sec.  56. 

By  the  French  law,  statues  placed  in  a  niche  made  expressly 
to  receive  them,  though  they  could  be  removed  without  fracture 
or  deterioration,  are  immovable,  or  part  of  the  realty.     Code 
Nap.,  sec.  535.     But  statues  standing  on  pedestals  in  houses, 
courtyards,   and  gardens  retain  their  character  of  "movable" 
or  personal.     Touillier,  Droit  Civil  de  France,  12.     This  has 
reference  to   statues  only  which  do  not  stand  on  a   substantial 
and  permanent  base  or   separate   pedestal   made   expressly  for 
them.     For  when  a  statue  v.  placed  on   a  pedestal   or  base  of 
masonry  constructed  expressly  for  it,  it  is  governed  by  the  same 
rule  as  when  placed  in  a  niche  made  expressly  to  receive  it,  and 
is  immovable.     2  Repertoire  Generale,  Journal  du  Palais,  by 
Ledru  Rollin,  518,  sec.  139.   The  statue  in  such  case  is  regarded 
as  making  part  of  the  same  thing  with  the  permanent  base  upon 
which  it  rests.     The  reasons  f c  r  the  French  law  upon  this  sub- 
ject are  stated  by  the  same  author  in  the  same  work,  page  517, 
sec.  129,  where  the  rule  is  laid  down  with  regard  to  such  orna- 
ments   as   mirrors,    pictures,    and   statues,    that   the   law   will 
presume   the       oprietor  intended   them   as  immovable,  when 
they  can  not  b^  taken  away  without  fracture  or  deterioration,  or 
leaving  a  gap  or  vacancy.     A   statue   is  regarded   as  integral 
-.vith  the  permanent  base  upon  which   it  rests,  and   which  was 
erected  expressly  for  it,  when  the   removal   of  the   statue   will 
offend  the  eye  by  presenting  before  it  a  distasteful  gap  {^''■vide 


;UTY. 


SNEDEKER    V.    WARRING. 


117 


\  upon  the 
to  be  per- 
y  civilians, 
.  19,  tit.  I, 

of  a  large 
iched  ("at- 
01*  they  are 

0  complete 
ade  only  to 
he  vestibule 
:es  that  we 
:  ei  statuae 
mus  portio 

le  expressly 
out  fracture 
ilty.  Code 
s  in  houses, 
"movable" 
This  has 

substantial 
xpressly  for 

or  base  of 
by  the  same 
ceive  it,  and 
u  Palais,  by 
J  is  regarded 
lit  base  upon 
>on  this  sub- 
k,  page  517, 
\o  such  orna- 
he  law  will 
vable,  when 
erioration,  or 

1  as  integral 
i  which  was 
;   statue   will 

gap  (^'■'■vide 


choquattt"'),  a  foundation  and  base  no  longer  appropriate  or 
useful.  lb.,  sec.  139.  Things  immovable  by  destinriion  are  said 
to  be  those  objects  movable  in  their  nature,  which,  without 
being  actually  held  to  the  ground,  are  destined  to  remain  there 
perpetually,  attached  for  use,  improvement,  or  ornament.  2 
Ledru  Rollin,  Repertoire  Generale,  514,  sec.  30. 

I  think  the  French  law,  as  applicable  to  statuary,  is  in 
accordance  with  reason  and  justice.  It  effectuates  the  inten- 
tion of  the  proprietor.  No  evidence  could  be  received  more 
satisfactory  of  the  intent  of  the  proprietor  to  make  a  statue  a 
part,  of  his  realty  than  the  fact  of  his  having  prepared  a  niche  or 
erected  a  permanent  base  of  masonry  expressly  to  receive  it ; 
and  to  reuiovc  a  statue  from  its  place,  under  such  circumstances, 
would  produce  as  great  an  injury  and  do  as  much  violence  to 
the  freehold,  by  leaving  an  unseemly  and  unci,  vered  base,  as  it 
would  have  done  if  torn  rudely  from  a  fastening  by  which  it 
had  been  connected  with  the  land.  The  mound  and  base  in 
this  case,  though  designed  in  connection  with  the  statue  as  an 
ornament  to  the  grounds,  would,  when  deprived  of  the  statue, 
become  a  most  objectionable  deformity. 

There  are  ciicumstances  in  this  case,  not  necessary  under  the 
French  law,  to  indicate  the  intention  to  make  this  statue  a  per- 
manent erection,  but  greatly  strengthening  the  presumption  of 
such  intent.  The  base  was  made  of  red  sandstone,  the  same 
material  as  the  statue,  giving  to  both  the  statue  and  base  the 
appearance  of  being  but  a  single  block,  and  both  were  also  of 
the  same  material  as  the  house.  The  statue  was  thus  pecul- 
iarly fitted  as  an  ornament  for  the  grounds  in  front  of  that 
particular  house.  It  was  also  of  colossal  size,  and  was  not 
adapted  to  any  other  destination  than  a  permanent  ornament  to 
the  realty.  The  design  and  location  of  the  statue  were  in  every 
respect  appropriate,  in  f;ood  ta^te,  and  in  harmony  with  the 
surrounding  objects  and  circumstances. 

I  lay  entirely  out  of  view  in  this  case  the  fact  that  Thorn  tes- 
tified that  he  intended  to  sell  the  statue  when  an  opportunity 
should  offer.  His  secret  intention  in  that  respect  can  have  no 
legitimate  bearing  on  the  question.  He  clearly  intended  to 
make  use  of  the  statue  to  ornament  his  grounds,  when  he 
erected  for  it  a  permanent  mound  and  base ;  and  a  purchaser 
had  a  right  so  to  infer  and  to  be  governed  by  the  manifest  and 


IlS       SOME    I'ECULIAR    CLASSES    OF    PERSONAL    PROPERTV. 

unmistakable  evidences  of  intention.  It  was  decided  by  the 
Court  of  Cassation  in  France,  in  Ilornelle  v.  Enregistr,  2  Ledru 
RoUin,  Journal  du  Palais,  Repertoire,  etc.,  214,  that  the  desti- 
nation which  gives  to  movable  objects  an  immovable  character, 
results  from  facts  and  circumstances  determined  by  the  law 
itself,  and  could  neither  be  established  or  taken  away  by  the 
simple  declarations  of  the  proprietor,  whether  oral  or  written. 
There  is  as  much  reason  in  this  rule  as  in  that  of  the  common 
law,  which  deems  every  person  to  have  intended  the  natural 
consequences  of  his  own  acts. 

There  is  no  good  reason  for  calling  the  statue  personal 
because  it  was  erected  for  ornament  only,  if  it  was  clearly 
designed  to  be  permanent.  If  Thorn  had  erected  a  bower  or 
summerhouse  of  wickerwork,  and  had  placed  it  on  a  perma- 
nent foundation  in  an  appropriate  place  in  front  of  his  house, 
no  one  would  doubt  it  belonged  to  the  realty;  and  I  think  this 
statue  as  clearly  belongs  to  the  realty  as  a  statue  would,  placed 
on  the  house,  or  as  one  of  two  statues  placed  on  the  gateposts 
at  the  entrance  to  the  grounds. 

An  ornamental  monument  in  a  cemetery  is  none  the  less  real 
property  because  it  is  attached  by  its  own  weight  alone  to  the 
foundation  designed  to  give  it  perpetual  support. 

It  is  said  the   statues   and   sphinxes   of   colossal  size  which 
adorn  the  avenue  leading  to  the  Temple  of  Karnak,  at  Thebes^ 
are  secured  on  their  solid  foundations  only  in  their  own  weight. 
Yet  that  has  been  found  sufficient  to  preserve   many    of  them 
undisturbed  for  four  thousand  years.  Taylor's  Africa,  113,  ctscq.; 
and  if  a  traveler  should  purchase  from  Mehemet  Ali  the  land  on 
which  these  interesting  niins  rest,  it   would  seem  quite  absurd 
to  hold  that  the  deed  did  not  cover  the  statues  still    standing 
and  to  claim  that  they  were    the  still  unadministcred  personal 
assets  of  the  Ptolemies,  after  an  annexation  of  such  long  dura- 
tion.    No  legal  distinction  can  be  made  between  the  sphinxes 
of  Thebes  and  the  statue  of  Thorn.  Both  were  erected  for  orna- 
ment, and  the  latter   was    as   colossal   in   size   and    as   firmly 
annexed  to  the  land  as  the  former,  and  by  the  san  e  means. 

I  apprehend  the  question  whether  the  Pyramids  of  Egypt  or 
Cleopatra's  Needle  are  real  or  personal  property  does  not 
depend  on  the  result  of  an  inquiry  by  the  antiquarian  whether 
they  were  originally  made  to  adhere  to  their  foundations  with. 


PERTY. 


FARRAR    V.    STACKPOLE. 


119 


:ided  by  the 
;istr,  2  Ledru 
lat  the  oesti- 
ile  character, 
1  by  the  law 
away  by  the 
I  or  written, 
the  common 
1  the  natural 

tue  personal 
was  clearly 
1  a  bower  or 
on  a  perma- 
)f  his  house, 
1  I  think  this 
/ould,  placed 
the  gateposts 

e  the  less  real 
alone  to  the 

al  size  which 
k,  at  Thebes, 
■  own  weight, 
lany    of  them 
a,  ii^^ctscq.; 
ili  the  land  on 
quite  absurd 
still    standing 
tered  personal 
ch  long  dura- 
i  the  sphinxes 
ected  for  orna- 
and    as   firmly 
i:e  means. 
Is  of  Egypt  or 
erty    does   not 
larian  whether 
jndations  with. 


wafers,  or  sealing  wax,  or  a  handful  of  cement.  It  seems  to 
me  puerile  to  make  the  title  to  depend  upon  the  use  of  such  or 
of  any  other  adhesive  substances,  when  the  great  weight  of  the 
erection  is  a  much  stronger  guaranty  of  permanence. 

The  sundial  stands  on  a  somewhat  different  footing.  It  was 
made  for  use  as  well  as  for  ornament,  and  could  not  be  useful 
except  when  firmly  placed  in  the  open  air  and  in  the  liglit  of 
the  sun.  Though  it  does  not  appear  that  the  stone  on  which 
it  was  placed  was  made  expressly  for  it,  it  was  appropriately 
located  on  a  solid  and  durable  foundation.  There  is  good 
reason  to  believe  it  was  designed  to  be  a  permanent  fixture, 
because  the  material  of  which  it  was  made  was  the  same  as 
that  of  the  house  and  the  statue,  and  because  it  was  in  every 
respect  adapted  to  the  place. 

My  conclusion  is,  that  the  facts  in  the  case  called  on  the 
judge  of  the  circuit  to  decikle,  as  a  matter  of  law,  that  the  prop- 
erty was  real,  and  to  nonsuit  the  plaintiff;  and  if  I  am  right 
in  this  conclusion,  the  judgment  of  the  supreme  court  should  be 
reversed. 

Consult— Potter  v.  Cromwell,  40  N.  Y.  287,  100  Am.  Dec.  485 ;  Teaff 
V.  Hewitt,  I  Ohio  St.  511,  59  Am.  Dec.  634;  Stockwell  v.  Campbell,  39 
Conn.  382,  12  Am.  Rep.  393;  Shoemaker  v.  Simpson,  16  Kan.  43;  Wood- 
man V.  Pease,  17  N.  H.  2S2 ;  State  v.  Marshall,  4  Mo.  (App.)  29;  Hunt  v. 
R.  Co.,  76  Mo.  115. 


§  26.    Same— Constructive  annexation. 

FARRAR  V.  STACKPOLE. 

[6  Me.  154.] 
Supreme  yudicial  Court  of  Maine,  i82g, 

Weston,  J. — If  the  claim  in  question  passed  as  a  constituent 
part  of  the  mill,  the  plaintiffs  h.ive  mside  out  their  title,  and  have 
a  right  to  judgment  on  the  verdict.  A  considerable  portion  ot 
the  machinery  and  power  of  the  mill,  like  that  conveyed  by  the 
defendant,  is  designed  to  be  applied  to  draw  up  logs  into  the 
mill,  which  is  essential  to  the  operation  of  one  of  this  construc- 
tion.    It  is  not  denied  that   other  parts  of  the   machinery   in- 


120       SOMK    I'ECri.IAK    CI.ASSKS    OF    PERSONAL    PROPERTY. 

tcntled  for  this  purpose  go  witli  the  mill ;  but  it  is  insisted  that 
the  chain  is  of  the  nature  of  personal  property,    and   therefore 
passes  not  by   a  deed   of   the   realty,  unless   specially   named. 
To  this  it  may  be    answered,   tirst,  that    if   it   be    an   essential 
part  of  the  mill  it  is  included  in  that  term,  whether  rcil  or  per- 
sonal;  secondly,  that  that  which  is  in  its  nature    personal   may 
change  its  character,  if  fixed,  used,  and  appropriated   to   that 
which  is  real.     Is  it  too  much  to  say  that  the  mill  is  incomplete 
without  a  chain,  a  cable,  or  other  substitute?     It  may  be  that  a 
millwright  who  contracts  to  erect  a  mill,  and  to   furnish   mate- 
rials, may  be  deemed  to  have  completed  his  engagement   with- 
out supplying  a  chain.     One  millwright,  a  witness  in  this  case, 
has  testified  that  such  is  his  impression.     And  if  this  is   under- 
stood generally  his  contract  might  not  extend  further.     But   the 
owner  would  find  that  he  had  yet  something   more   to   procure 
before  the  mill  could  be  in  a  condition  to  operate.     The  chain 
is  the  last  of  the  parts  in  the  machinery  to  which  the    impelling 
power  is  communicated  to  effect  the  object  in  view.     Its  actual 
location  in  the  succession  of  parts  can  make    no  difference.     If 
it  is  in  its  nature  essential  to    the   mill,    it   is    included   in    that 
term;  and  that,  as  has  been  before   remarked,    whether  it   be 
personal  or  real  property.  But,  upon  consideration,   we  are  of 
opinion  that  it  ought  to  be  regarded  as  appertaining  to  and  con- 
stituting  a  part  of  the  realty. 

It  is  an  ancient  principle  of  law  that  certain  things  which  in 
their  nature  are  personal  property,  when  attached  to  the  realty, 
become  part  of  it  as  fixtures.  One  criterion  is  that  if  that  which 
is  ordinarily  personal  be  so  fixed  to  the  realty  that  it  can  not  be 
severed  therefrom  without  damage,  it  becomes  part  of  the  realty; 
as  wainscot  work  and  old  fixed  and  dormant  tables  and  bench- 
es. Other  things  pass  as  incident  to  the  realty,  as  doves  in  a 
dovehouse,  fish  in  a  pond,  or  deer  in  a  park.  2  Com.  Dig. 
Biens  B.  On  the  other  hand,  as  between  landlord  and  tenant, 
for  the  benefit  of  trade,  in  modern  times  many  things  are  re- 
garded as  personal  which,  as  between  the  heir  and  executor, 
would  descend  to  the  heir  as  part  of  the  inheritance. 

Although  the  being  fastened  or  fixed  to  the  freehold  is  the 
leading  principle  in  many  of  the  cases  in  regard  to  fixtures,  it 
has  not  been  the  only  one.  Windows,  doors,  and  window  shut- 
ters are  often  hung  but  not  fastened  to  a  building,  yet  they  are 


3PKRTY. 

5  insisted  that 
ind  therefore 
:ially   named. 

an  essential 
;r  re  il  or  per- 
personal  may 
■iated   to   that 

is  incomplete 
may  be  that  a 
furnish   mate- 
gement   with- 
is  in  this  case, 
this  is   under- 
her.     But  the 
re   to   procure 
e.     The  chain 
the    impelling 
w.     Its  actual 
difference.     I£ 
:huled   in    that 
whether  it   be 
on,   we  are  of 
ing  to  and  con- 

lings  which  in 
d  to  the  realty, 
It  if  that  which 
t  it  can  not  be 
rtof the  realty; 
es  and  bench- 
as  doves  in    a 

2  Com.  Dig. 
3rd  and  tenant, 

things  are  re- 
•  and  executor, 
nee. 

rcehold  is  the 
.  to  fixtures,  it 
id  window  shut- 
>g.  yet  they  are 


FAHRAR    V.    STACKPOLE. 


121 


properly  part  of  the  real  estate,  and  pass  with  it;    because  it   is 
not  the  mere  fixing  or  fastening  which  is  regarded,  but  the   use, 
nature,  and  intention.  Dane's  Abr.,  ch.  76,  art.  8,  sec.  39-  Mod- 
ern times  have  been  fruitful    in    inventions   and    improvements 
for  the  more  secure  and  comfortable  use  of  buildings,    as   well 
as  of  many  other  things  which  administer  to  the    enjoyment  of 
life      Venetian  blinds,  which  admit   the    air   and    exclude    the 
sun,  whenever  it  is  desirable  so  to  do,  are  of  modern  use;  so  are 
lightning  rods,  which  have  now  become  common  in  this  coun- 
try and  in  Europe.     These  might  be  removed   from   buildings 
without  damage;  yet,  as  suited  «nd   adapted  to  the    buildings 
upon  which  they  are  placed,  and  as  incident  thereto,    they   are 
doubtless  part  of  the  inheritance,  and  would  pass   by   deed    as 
appertaining  to  the  realty.     But  the  genius    and    enterprise   of 
the  last  half  century  has  been  in  nothing  more  remark.nble  than 
in  the  employment   of  some  of  the  great  agents   of   nature,    by 
means  of  machinery,  to  an  inPnite  variety  of  purposes,    for  the 
saving  of  hum*i  labor.     Hence  there  has  arisen  in  our  country 
a  multitude  of  establishments  for  working  in  cotton,  wool,  wood, 
iron,  and  marble,  some  under  the  denomination  of  mills,    and 
others  of  factories,  propelled,  generally,  by   water  power,  but 
sometimes  by  steam.     These  establishments  have  in   many   in- 
stances,  perhaps  in  most,  acquired  a   general    name,   which   is 
understood  to  embrace  all  their   essential   parts;    not  only   the 
building  which  shelters,  incloses,    and   secures    tl.e  machinery, 
but  the  machinery  itself.     Much  of  it  might  be  e«fy^«tached 
without   injury   to   the  remaining  parts  or  to  the  building;  bu 
it  would  be  a  very  narrow  construction  which  should  exclude  it 
from  passing  by  the  general  name  by   which  the  establishment 
is  known,  whether  of  mill  or  factory.   The  general  principles  of 
law  must  be  applied  to  new  kinds  of  property,  as   they    spring 
into   existence,  in  the  progress  9f   society,    according   to    their 
nature  and  incidents,  and  the  common  sense  of  the  community. 
The  law  will  take  notice  of  the  mutations  of  language,  and   ot 
the  meaning  of  new  terms  applied  to  new  subjects  as  they  arise. 
In  other  words,  it  will  understand    terms   used   by    parties   in 
their  contracts,  whether  executed  or  executory,  whether  in   re- 
lation  to  real  or  personal   estate,    according   to   their   ordinary 
meaning  and  acceptation. 


123   SOME  PECULIAR  CLASSES  OF  PERSONAL  PROPERTV. 

There  was  at  Bath,  in  this  state,  a  sawmill  propelled  by 
steam,  generally  called  the  steam  sawmill.  Suppose  this 
establishment  had  been  conveyed  by  the  name  of  the  steam 
sawmill,  without  a  more  particular  description.  What  would 
pass?  There  is  nothing  in  the  books  with  resp<  ct  to  this 
species  of  property,  for  it  is  of  quite  modern  invention;  and 
there  is  no  other  mill  of  the  kind  in  this  part  of  the  country. 
If  you  exclude  such  parts  of  the  machinery  as  may  be  detached 
without  injury  to  the  other  parts  or  to  the  building,  you  leave 
it  mutilated,  incomplete,  and  insufficient  to  perform  its 
intended  operations.  The  parties  in  using  the  general  term 
would  intend  to  embrace  whatever  was  essential  to  it,  accord- 
ing to  its  nature  and  desirrn:  r'nd  the  law  would  doubtless  so 
construe  the  conveyan  je  ^s  .    ..tuate  the  lawful  intention  of 

the  parties.     Salt  pans  ha  ■     .eld  to  pass  the  realty,  and 

to  belong  to  the  inheritance;  bec.iuse  adapted  and  designed  for 
and  incident  to  an  esta)  '  :h"ient  for  ihc  manufacture  of  salt. 
The  principle  is  that  cert:un  t  .  "ts,  nal  in  their  nature, 

when  fitted  and  prepared  to  be  v.sed   xa  HI,  'e.il  estate,  change 
their  character,  and  appertain  to  the  realty,  as  an  incident  or 
accessory  to  its  principal.     Upon  this  ground  we  are  satisfied 
that  the  chain  in  question,  being  in  the  mill  at  the  time,  and 
essential  to  its  beneficial  enjoyment,  passed  by  the  deed  of  the 
defendant  to  Asa  Redington,  under  whom  the  plaintiffs  claim, 
independent  of  any  reference  to  usage.     The  verdict  is  there- 
fore sustained,  although  not  upon  a  ground  in  accordance  with 
the  impressions  of  the  judge   who  presided  at  the  trial.     This 
we  think,  upon  the  whole,  a  fair  application  of  the  principles 
of  law  to  the  case.     Had  the  term  mill,  however,  by  uniform 
and  general  usage,  been  understood  not  to  embrace  the  chain, 
a  different  construction  would  no  doubt  have  obtained ;  for  it 
is  a  term  of  art,  the  proper  meaning  of  which  would  be  fixed 
by  the  general  understanding  of   those  who    are   skilled    and 
experienced   in  it.     If   they  were  not  agreed,   the  law  would 
adopt  that  which  was  most  general,   and  which  would   best 
accord  with   the  nature   and   character   of  the  subject-matter. 
The  jury  have  found,  upon  the  evidence  submitted  to  them, 
that  by  general  and  uniform  usage  the  chain  passed  by  a  deed 
of  the  mill.     This  finding  was  somewhat  stronger  than  the  evi- 
dence warranted.     It  did  appear  that  there  had  been  exceptions 


OPERTV. 

propelled  by 
Suppose    this 

of  the  steam 

What  would 
esp<  ct  to  this 
nvention;  and 
f  the  country, 
ly  be  detached 
ing,  you  leave 
)    perform    its 

general  term 
I  to  it,  accord- 
d  doubtless  so 
:ul  intention  of 
the  realty,  and 
id  designed  for 
facture  of  salt, 
n  their  nature, 

estate,  change 

an  incident  or 
^'e  are  satisfied 
:  the  time,  and 
the  deed  of  the 
ilaintiffs  claim, 
'erdict  is  there- 
iccordance  with 
[he  trial.  This 
E  the  principles 
,er,  by  uniform 
jrace  the  chain, 
jbtained ;  for  it 
would  be  fixed 
ire   skilled    and 

the  law  would 
ich  would   best 

subject-matter, 
mitted  to  them, 
assed  by  a  deed 
jer  than  the  evi- 
been  exceptions 


STATE    SAVINGS    DANK    V.    KIRCHEVAL. 


123 


to  this  usage,  but  the  weight  of  evidence  went  to  support  it. 
At  any  rate,  it  is  apparent  that  the  usage  is  rather  in  favor 
than  against  the  construction  we  have  adopted.  But  as  wc  are 
of  opinion  that  the  title  of  the  plaintiffs  is  well  supported  by 
the  deed,  independent  of  usage,  it  becomes  unnecessary  to 
decide  upon  the  competency  or  effect  of  the  testimony  adduced 

upon  this  point. 

Judgment  on  the  verdict. 

CoNSULT-Dudley  v.  Hurst,  67  Md.  44,  i  Am.  St.  Rep.  368;  State  v. 
Elliott,  II  N.  H.  574;  Caldwell  v.  Ene.is,  2  Mill.  348,  12  Am.  Dec.  68i; 
McKeage  v.  Ins.  Co.,  81  N.  Y.  38.  37  Am.  Rep.  47^;  Cohen  v.  K^Ier, 
27  Mo.  122;  Rogers  v.  Crow,  40  Mo.  91,  93  Am.  Dec.  297. 


§  26.    Same— Purpose  and  use  as  test. 

STATE  §AVINGS  BANK  v.  KIRCHEVAL. 

[6s  Mo.  682;  27  Am.  Rep.  310.] 
Supreme  Court  of  Missouri,  1877. 

Suit  to  enjoin  the  removal  of  a  frame  building  erected  by 
defendant  Allen  on  defendant  Kircheval's  land,  mortgaged  to 
plaintiff  and  sold  by  Kircheval  to  Allen  in  payment  of  its  con- 
struction,  and  about  to  be  removed  by  Allen.  The  land  was 
occupied  and  used  for  a  mill,  built  of  brick.  The  building  m 
question  was  about  three  feet  from  the  mill  and  only  connected 
with  it  by  a  wooden  walk  between  the  outer  doors  of  the  build- 
ings; was  intended  for  an  office  and  was  built  on  block  laid 
on  the  ground.  It  was  constructed  after  the  execution  of  the 
mortgage,  and  was  intended  to  be  removed.  An  injunction 
was  decreed.  . 

Henry,  J,— The  questions  for  consideration  here  are: 

1.  VvJs  the  building  which  it  is  alleged  the  defendants  were 
about  to  remove,  personal  property .' 

2.  If  not,  would  an  action  for  damages  have  afforded  an 

adequate  remedy  ?  ... 

It  must  be  admitted  that  the  law  in  regard  to  fixtures  is  in  a 
somewhat  chaotic  state.     It  is  frequently  difficult  to  determine, 


124   SOME  PECULIAR  CLASSES  PK  PERSONAL  PROPERTY. 

upon  principle,  whether  an  article  of  property  is  a  fixture  or 
not.     There  is  a  most  embarrassing  conflict  in  the  adjudged 
cases.     On   grounds   of    public   policy,    to    encourage    trade, 
manufactures,    antl    agriculture,    many    things    are    regarded 
chattels  in  controversies  between  landlords  and  tenants  which 
would  unquestionably  be  held  as  fixtures,  as  between  vendor 
and  vendee ;    and  the  same  rule  prevails  between  mortgagor 
and  mortgagee  as  between  grantor  and  grantee.     In  determining 
whether  a  building  is  part  of  and  passes  with  the  land,  a  good 
deal  depends  upon  the  object  of  its  erection,  the  use  for  which 
it   was    designed.      The    intention    of    the   party   making  the 
improvement,  ultimately  to  remove  it  from  the  premises,  will 
not,   by  any  means,  be  a  controlling  fact.     One  may  erect  a 
brick  or  a  stone  house  with  an  intention,  after  brief  occupancy, 
to  tear  it  down  and  build  another  on  the  same  spot,  but  that 
intention  would  not  make  the  building  a  chattel.     "The  desti- 
nation which  gives  a  movable  object  an  immovable  character 
results   from  facts  and  circumstances  determined  by   the  law 
itself,  and  could  neither  be  established  nor  taken  away  by  the 
simple  declaration  of  the  proprietor,  whether  oral  or  written." 
Snedcker  v.  Warring,  12  N.  Y.  17S.      In  Goff  v.  O'Connor, 
16  111.  422,  the  court  said:     "Houses  in  common  intendment 
of  the  law  are  not  fixtures,  but  part  of  the  land.     •     »     *     This 
does  not  depend,  in  the  case  of  houses,  so  much  upon  the  par- 
ticular mode  of  attaching  or  fixing  and  connecting  them  with 
the  land  upon  which  they  stand  or  rest,  as  upon  the  uses  and 
purposes  for  which  they  were  erected  and  designed."     In  Cole 
V.   Stewart,  11   Cush.    182,   the  building  was  intended  by  the 
owner  to   be  temporary,   and  built  with  a   view    to   ultimate 
removal.     In  a  contest  between  the  mortgagee,  whose  mortgage 
was  executed   subsequent  to  the  erection  of  the  house  and  a 
purchaser  of  the  building  from  the  mortgagor,  it  was  held  to  be 
a  fixture.     In  the  light  of  these  cases  and  many  others  which 
we  have  examined,  we  do  not  regard  the  fact  that  the  building 
in  c[uestion  was  erected  as  a  temporary  building,  and  with  an 
intention  of  ultimate  removal,  at  all  decisive  as  to  whether  it 
became  a  part  of  the  realty  or  not. 

The  manner  in  which  a  building  is  placed  upon  land, 
whether  upon  wooden  posts,  or  a  rock,  or  brick  foundation, 
does  not  determine  its  character.     As  was  said  by  Parker,  J., 


mm 


lOPERTY. 

is  a  fixture  or 
I  the  adjudged 
:ourage  trade, 
are  regarded 
tenants  which 
etween  vendor 
een  mortgagor 
In  determining 
le  land,  a  good 
!  use  for  which 
ty  making  the 
premises,  will 
ne  may  erect  a 
rief  occupancy, 
:  spot,  but  that 
"The  desti- 
vable  character 
ed  by  the  law 
Ml  away  by  the 
ral  or  written." 
f  V.  O'Connor, 
ion  intendment 
*  *  »  This 
1  upon  the  par- 
ting them  with 
n  the  uses  and 
led."  In  Cole 
ntended  by  the 
jw  to  ultimate 
vhose  mortgage 
le  house  and  a 
:  was  held  to  be 
jy  others  which 
iiat  the  building 
ig,  and  with  an 
as  to  whether  it 

ed    upon   land, 

ick    foundation, 

by  Parker,  J., 


STATE    SAVINGS    BANK    V.    KIUCHEVAL. 


12  = 


in  Snedcker  v.  Warring,    above  cited:      "A  thing  may  be  as 
firmly  fixed  to  the  land  by  gravitation  as  by  clamps  or  cement. 
Its  character  may  depend  upon  the  object  of  its  erection."     In 
Teaff  V.   Hewitt,   i  Ohio  St.  511,   it  was  held  that:    "The  in- 
tention of  the   party  making  the  annexation  to  make  the  article 
a   permanent   accession  to   the  freehold,  this  intention    to    be 
inferred  from  the  nature  of  the  article  aflixed,  the  relation  and 
situation    of   the  party  making   the    annexation,   the  structure 
and  mode  of  annexation  and  the  purpose  and  use  of  which  the 
annexation  has  been    made"   is  a  controlling  circumstance  in 
determining  whether  the  structure  is  to  be  regarded  as  a  fixture 
or  not.     In  the  case  of   Benjamin  F.  Butler,  Adm.,  v.  Page, 
7  Mete.   43,  Shaw,  C.  J.,  delivering  the  opinion  of  the   court 
said:   "All  buildings  erected  and  fixtures  placed  on  mortgaged 
premises   by  the  mortgagor  must   be  regarded  as  permanently 
annexed  to  the  freahold.     They  go  to  enhance  the  value  of  the 
estate  and  will,  therefore,  inure  to  the  benefit  of  the   mortgagee 
so  far  as  they  increase  his  security  for  his  debt  and  to  the  same 
extent  they  enhance  the  value  of  the  equity  of  redemption  and 
thereby  inure  to  the  benefit  of  the  mortgagor."     In  controver- 
sies between  mortgagor  and  mortgagee  the  rule  is  more  favor- 
able to  the  mortgagee  in  relation    to  fixtures  than  that  which  is 
applied  between  landlord   and  tenant,  and   applying  the  prin- 
ciples announced  in  the  cases  which  we   have   cited,  which  we 
believe  to    be   sound  and  salutary,    we    must  hold    that   the 
building  in  question  was  a  part  of  the  realty  and  that  neither 
the  mortgagor  nor  the  purchaser  from  him  has  a  right  to  remove 
it.     It  becomes  a  part  of  the  plaintiff's  security  for  its  debt. 

The   remaining  question  is,    did    the  facts   alleged    in   the 
petition  warrant  the  court  in  retaining  the  parties  by  injunction 
from  removing  the  building.     It  is  not  essential  that  the  injury 
threatened    shall    be     irreparable     to    warrant    a     resort     to 
the    remedy    by    injunction.     Our   statute     provides,    section 
24      page     1032,     Wagner's     Statutes,     that    "the   .remedy 
by     writ     of     injunction      shall    exist      in     all     cases    when 
an  injury   to   real  or  personal    property    is   threatened  and   to 
prevent   the  doing    of    any   legal  wrong  whatever,    whenever 
in   the   opinion   of  the    court  an  adequate   remedy  can   not  be 
afforded  by    an  action  for  damages."     Would    an  action  for 
damages  have  afforded  an  adequate  remedy,  is  the  question  and 


ii 


126      SOME    PECfl.lAR   CI.ASSKS   OF    PEUSOVAI.    I-nOPI-nTV. 

not  whether  the  threatened  injury  wouhl  have  been  irreparable. 
The  building  was  erected  to  be  used  in   common  with  and  as 
an  othce  for  the  mill.     It  was  erected  to  supply  the  place  of  an 
oflice  formerly  used  which   had  been  appropriated  to  another 
purpose.     Its  immediate  and  constant  use  was  of  importance  to 
the  milling  business.     The  value  ot  the  building  which  a  jury 
might  have  given  as   damages  would  not  have  been  a  sufficient 
compensation  to  the  owner  for  its  removal.  The  defendant  Allen 
may  have  been  solvent,  amply  able  to  respond  in  damages  for 
his  trespass,   but  it  does  not  therefore  follow  that  he  coidd  not 
be  restrained  from  severing  from   the  land  a  house  which  be- 
longed not  to  him,  but  to  the  owner  of  the  land.     If  a  man  of 
large  fortune,  so  wealthy  as  to  place  beyond  a  doubt  his  ability 
to  pay  any  damages  which  might  be  assessed  to  me  for   his 
trespass,    should    determine    and   threaten    to    tear   down    my 
dwelling  over  my  head,  will   it  be  said  that  a  court  of  equity 
would  be  powerless  to  restrain  him  from  executing  his  threats 
and  that  I  would  have  no   remedy  but  to  suffer  the  wrong  and 
sue  for  damages?     There   are  inconveniences  and   perplexities 
to  which  one  may  be   subjected  by   a  trespass  such  as  we  are 
considering  for  which  a  jury  could  not  under  the  rules  of  law 
fully  compensate  him,  and  we  think  the  provision  of  our  statute 
broiid  enough,  however  the  law  may  have   been  before  its  en- 
actment, to  authorize  a  resort  to  injunction  proceedings  in  such 
cases.     The   judgment  of   the  circuit  court  is   affirmed.     All 
concur. 

Consult— Lipsky  V.  Borgmann,  52  Wis.  256,  38  Am.  Rep.  735;  Still- 
man  V.  Flenniken.  58  Iowa,  45°,  43  Am.  Rep.  120;  Lyle  v.  Palmer,  42 
Mich.  314;  Harlun  v.  Harlan,  15  Pa.  St.  507,  S3  Am.  Dec.  612; 
Morris'  Appeal.  88  Pa.  St.  368;  Green  v.  Phillips,  26  Gratt.  7.S2,  21 
A.m.  Rep.  323;  McConnell  v.  Blood,  123  Mass.  47^  25  Am.  Rep.  12. 


lOPERTY. 

en  irreparable. 
:in  with  and  as 
the  phice  of  an 
ited  to  another 
importance  to 
g  which  a  jury 
ecn  a  sufficient 
efendant  Allen 
in  damages  for 
at  he  could  not 
)use  which  be- 
1.     If  a  man  of 
oulii;  his  ability 
to  me  for   his 
ear   down    my 
court  of  equity 
;ing  his  threats 
the  wrong  and 
nd   perplexities 
such  as  we  are 
he  rules  of  law 
n  of  our  statute 
I  before  its  en- 
eedings  in  such 
afF.rmed.     All 


I.  Rep.  735;  StUl- 
,yle  V.  Palmer,  42 
Am.  Dec.  612; 
26  Gratt.  752,  21 
km.  Rep.  12. 


SOMr.   PECULIAR   CLASSES   OF    PEHSONM.    PROPKUTY. 


127 


§  27.    Fixtures-intention  of  parties  as  the  test. 
OTTUMWA  WOOLEN  MILLS  CO.  v.  IIAWLEY. 

[44la.  57;  H^'^'"I^«P'7'9.^ 
Supreme  Court  of  Iowa,  1876. 

In  1S70  one  Grim  was  the  owner  of  part  of  an  out  lot  in 
the"  i  of  Ottumwa,  upon  which  was  situated  a  woolen  manu- 
factory  propelled  by  a  steam  engine,  and  w.nch  manufactory 
'^Z:Z  the  usLl  machinery  and  ^Ppl^-^^ --'  - 
turin-cloth  from  wool.  On  the  f.rst  day  of  October,  '^O'  -" 
G  m  e.ecuted  a  trust  deed  on  said  real  estate  tosecu  a  o. 
of,4,ooofromthcV-^rInsuranceCo^^^ 

X:a  t:r:^-i:  :s::^or,  appel.ant.stes.ator      On^be 

-Tfrr^--:::tt,a:^^:j::: 

r:';  :  tei  ^'Z  Oulmwa  Woolen  Mill  Con.pany    plaintiff 
and  apTe  t  bercin,  a  deed  for  said  land  "with  the  budchng 
ami  appen  ,  movable  machinery  therem.'     On 

fVio   nrnnertv  v/as   sola  on  a  spcLun    ^ 

the   property  ^^^.^^tion,  and  during  the  year  of 

!s  'xecJtors  of  said  James  Hawley,  Senior.  The  descnpfon 
o  t^  property  in  the  decree  of  foreclosure  and  m  the  shenff  8 
de  d  :s  uistantially  the  same  as  in  the  trust  deed  Appellants 
fook  Dossession  of  the  building  and  machinery  from  p.anUiff. 
Td  at7h    r  thereof  were  informed  by  the  superintendent  of 


I2S       SOMK    PECL'I.IAK    CLASSES    OF    I'EKSONAL    PKOPKniY. 

phiiiitiff  that  he  had  hccii  histructcd  not  to  suneiuler  the 
machiiury.  Upon  refusal  to  deliver  np  the  machinery  to  the 
appellee,  this  suit  was  bron^lit  to  recover  its  possession  or  value, 
claiming  that  said  macliinery  was  personal  property,  and  did 
not  pass  hy  the  trust  deed,  foreclosure,  and  sheriff's  deed.  The 
issue  made  hy  the  parties  was  as  to  the  character  of  said 
machinery,  wliethcr  fixtures  or  personal  property.  There  was 
trial  to  the  court  ar.d  a  t\ndm<r  made  tiiat  the  steam  engine, 
shafting,  and  some  other  machinery  were  fixtures,  and  passed 
with  the  land  and  building,  and  that  certain  other  parts  of  the 
machinery  and  appliances  in  the  building,  and  of  the  value  of 
$.1,113.  were  personal  property  and  not  fixtures,  and  a  judg- 
ment was  rendered  against  the  defendants  for  said  value,  and 
they  appeal. 

RoTiiKocK,  J.— At  the  time  of  the  trial  in  the  court  below, 
an  examination  of  the  premises  and  machinery  in  question  was 
made  by  the  court  and  the  parties,  and  an  agreement  was  made 
as  to  the  situation  and  manner  of  attachment  of  the  various  parts 
of  the  machinery,  after  which  no  evidence  was  taken  as  to  the 
character  of  attachment  of  the  machinery  in  question.  This 
agreement  is  quite  lengthy,  and  it  is  not  necessary  to  incor- 
porate it  in  this  opinion  in  order  to  properly  comprehend  the 
conclusion  to  which  we  have  arrived.  The  court  found  that 
the  following  property  was  affixed  to  and  passed  with  the  real 

estate: 

I.  The  steam  engine,  boiler,  whistle,  pump,  and  all  its 
attachments  and  belts  connecting  it  directly  with  the  other 
machinery.  2,  The  fulling  mill  and  its  attachments  and  belts. 
3.  The  ma'n  shaft  and  the  pulleys  thereon  and  all  the  belts, 
connecting  i ;  with  the  counter-shafting.  4.  The  counter-shafting 
and  the  c'.ye  kettle.     5.    The  counter  and  shelving  in  the  office. 

It  was  found  that  all  of  the  other  machinery  and  articles  in 
controversy  were  personal  property  and  did  not  pass  by  the 
mortgage  and  sheriff's  deed.  No  question  is  made  here  as  to 
the  finding  of  the  court  that  the  steam  engine  and  other  articles 
above  enumerated  were  fixtures,  and  passed  by  the  mortgage 
and  sheriff's  deed.  It  is  proper  to  observe  that  the  boiler  was 
walled  .ibout  with  one  layer  of  brick,  and  that  some  of  the  other 
articles  enumerated  above  were  so  constructed  and  attached  to  the 


JPRRTV. 

iuneiulcr  tlie 
chincry  to  the 
ision  or  value, 
perty,  ami  did 
■f's  deed.  The 
iracter  of  said 
y.  There  was 
steam  enjjine, 
;s,  and  passed 
LT  parts  of  the 
f  the  value  of 
s,  and  a  judg- 
iaid  value,  and 


3  court  below, 
1  question  was 
nent  was  made 
le  various  parts 
ikcn  as  to  the 
lUcstion.  This 
ssary  to  incor- 
Dmprehend  the 
)urt  found  that 
I  with  the  real 

Tip,    and  all  its 
with   the  other 
lents  and  belts, 
md  all  the  belts. 
:ounter-shafting 
ng  in  the  office. 
■  and  articles  in 
lot  pass  by  the 
nade  here  as  to 
id  other  articles 
jy  the  mortgage 
it  the  boiler  was 
Dme  of  the  other 
d  attached  to  the 


OTTU.MWA    WdOI.EN    MII.I.S    CO.    V.    HAWLEV. 


129 


Iniildlnt,'  and  land  as  to  be  peculiarly  adapted  to  lliat  building, 
rather  tliau  to  be  used  inwooli-n  manufactories  gOMLially.  unless 
l.v    uiatiM-ial    changes    in  construction     and    adaptation.     Tin- 
machinery  which  the  court  held  to  be  personal  property  con- 
sisted of  •  -arders,  condensers,  breakers,    spinning  jacks, 
looms,   sh        ,  etc.     Such  of  the  machinery  as  was  operated  by 
steam  power   was  so  operated   by  means  of  belting   connected 
with  the  main  shaft  or  counter-shafting.  The  looms  are  fastened 
to  the    tloor  by   screws  in  thu  feet,   some    looms   having   two 
screws  and   some   four.     The   carders   are  kept  in  position  by 
their  own    weight,  one  weighing  about  3,000,    and  the  other 
about  i.Soo  pounds.     The  spinning  jacks  arc  fastened  and  held 
in  position  l)y  cleats  nailed  to  the  iloor,  and  by  iron  rods  run- 
ning up  through  the  floor  above.    Other  of  the  machinery  being 
ponderous,  is  designed  to  be  kept  in  position  by  its  own  weight. 
Counsel  for  apiiellant  claim  that  as  the  mortgage  or  trust  deed 
conveyed  the  premises  "with  the   appurtenances,"  something 
more  is  conveyed   than  the  real   estate.     This  being  the  usual 
form  of  conveyance   of  real  estate,  we   are   unable  to  see  how 
personal           >erty  can  be  embraced    therein.     Appurtenances 
ore  thini            mging  to  another  thing  as  principal,   and  which 
pass  as  incident  to  the   principal  thing.     The  term,  as  used    in 
conveyances,  passes  nothing  but  the  land   and   such  things  as 
belong  thereto  and  are  part  of  the  realty. 

2.  The  main  question  in  the  case,  however,  and  to  which 
counsel  for  both  parties  have  principally  directed  their  argu- 
ments, is  as  to  the  character  of  the  machinery  in  question, 
whether  it  be  real  or  personal  property.  Fixtures  are  a  species 
of  property  which  are  the  dividing  line  between  n  al  and  per- 
sonal and  to  decide  on  which  side  of  the  line  certain  property 
belongs  is  often  a  vexatious  question.  When  we  compare  a 
thing  at  the  extremity  of  one  class  with  a  thing  at  the  extremity 
of  another  the  difference  is  obvious,  but  when  we  approach  the 
point  of  division,  difficulty  arises  in  discovering  where  the  dis- 
tinction should  be  drawn.  Hill  on  Fixtures,  16.  On  the  ques- 
tion whether  such  machines  so  situated  are  fixtures,  so  that  they 
constitute  a  part  of  the  real  estate,  the  authorities  are  so  far 
from  being  uniform  that  no  rule  of  universal  application  can  be 
deduced  from  them  without  conflicting  with  the  doctrines  found 


I30      SOME    r-ECULlAR    CLASSES    OF    PERSONAL    PROPERTY. 

in  some  of  the   decisions   upon  the   subject.     In   New   York, 
Ohio,  Vermont,  and  some  other  states  it  is  held  that  property  of 
the   character  in  question  is  personal,   and  does   not  pass  by  a 
mortgage  or  conveyance  of  the  real  estate.  Murdock  v.  'Jifford, 
iS  N.    Y.    28;   Walker   v.    Sherman,   5    111.    527;  Potter   v. 
Cromwell,  40  N.  Y.  287;  Teaff  v.  Hewitt,  i  Ohio  State,  511 ; 
Corwin   V.   Cowan,  Id.   629;   Hill  v.  Wentworth,  28  Vt.  42S ; 
Bartlett  v.  Wood,  32  Id.  372  ;    Gale  v.  Ward,  14   Mass.    352. 
In  Maine,  Pennsylvania,  New  Hampshire,  and  in  other  states, 
the  courts  hold  that  property  of  the  character  in  question  is  not 
personal  and   passes  by  mortgage  or  deed  of  the  real  estate. 
Farmrv.  Stackpole,  6  Greenleaf,    155;   Corliss   v.   McLogin, 
29  Me.    115;  Parsons  v.   Copeland,  38   Id.   537;   Burnside  v. 
Fritchell,   43  N.    H.    390;  Voorhis   v.  Freeman,    2  Watts  & 
Serg.  116;   Harlan  v.  Harlan,  15  Pa.   St.  513.     In  all  of  these 
cases,  and   in  all   the  others  cited  in   argument,  whenever  the 
question  arises  as  to  the  character  of   a  steam  engine  or  water 
wheel,  which  is  the  propelling  pov/er  of  a  mill,  or  manufactory, 
the  uniform  rule  is  that  they   are  held  to  be  fixtures   and  pass 
with  the  real  estate.     The  same    may  be  said  of  the  stones  or 
burrs  in  a  grist  mill,  the   cogwheels,  gearing,  and  shafting  in  a 
mill  or  manufactory,  they   being   parts   of  the  motive   power. 
The  court  below  properly  held  the  engine,  boiler,  shafting,  and 
counter-shafting   and  the  belting,  to  be  fixtures,  and  that  they 
passed  under  the  mortgage  foreclosure  and  sheriff's  sale.    With 
the  belting  or  straps  which  propelled  the  looms,  spinning  jacks., 
etc.,  the  court  stopped,  and  in   substance  decided  that  here  is 
the  dividing  line,  all  beyond  are  mere  chattels.     The  basis  or 
reasor  for  thus  holding  seems  to  be  in  the  thought  that  there  is 
nothing  in  the  character  of  the  property,  or  in  the  manner  of  its 
annexation  to  the  building,  or  in  its  adaptation  thereto,  indicat- 
ing that  it  ^^as  intended  as  a  permanent  accession  to  the  realty, 
and  that  adaptation  to  the  business  carried  on  in  the  building  is 
not  a  criterion  for  determining  the  question  as  to   whether  the 
machinery  be  real  or  personal  property.    It  is  argued  that  these 
looms,  spinning  jacks,  etc.,    are  equally  well  adapted  to  any 
other  building,  that  they  are  manufactured  with  a  view  of  being 
used  in  any  woolen  mill  in  which  they  maybe  placed,  that  they 
are  entire  and  complete  machines  in  and  of  themselves,  that  the 
physical  attachments  are  such  that  they  may  readily  be  removed 


m 


PERTY. 


OTTUMWA    WOOLEN    MILLS    CO.    V.    HAWLEY. 


131 


New  York, 
t  property  of 
lot  pass  by  a 
k  V.  'Jifford, 
1 ;  Potter  v. 
)  State,  511 ; 

28  Vt.  42S; 

Mass.    352. 

other  states, 
lestion  is  not 
i  real  estate. 
V.  McLogin, 
;  Burnside  v. 
,  2  Watts  & 
:n  all  of  these 
whenever  the 
^hie  or  water 
manufactory, 
ires   and  pass 

the  stones  or 

shafting  in  a 
lotive    power. 

shafting,  and 

and  that  they 
;'s  sale.  With 
pinning  jacks., 
d  that  here  is 

The  basis  or 
It  that  there  is 
:  manner  of  its 
ereto,  indicat- 
1  to  the  realty, 
the  building  is 
;o  whether  the 
rued  that  these 
idapted  to  any 
\  view  of  being 
aced,  that  they 
selves,  that  the 
ily  be  removed 


to  any  other  bunumg,  and  that  there  is  nothing  in  the  character 
of  the  machines  or  mode  of  annexation,  to  denote  that  they  were 
intended  as  permanent  accessions  to  the  realty,  and  that,  there- 
fore, they  are  chattels.  In  the  case  of  Teaff  v.  Hewitt,  i  Ohio 
St.  511,  it  is  said:  "The  true  criterion  of  a  fixture  is  the  united 
application  of  the  following  requisites:  i.  Actual  annexa- 
tion to  the  realty,  something  appurtenant  thereto;  2.  Applica- 
tion to  the  use  or  purpose  to  which  that  part  of  the  realty  with 
which  it  is  connected  is  appropriated;  3.  The  intention  of  the 
party  making  the  annexation  to  make  a  permanent  accession  to 
the  freehold." 

In  the  application  of  the  rule  just  stated,  it  was  held  that 
"the  machinery  in  a  woolen  factory,  consisting  of  carding 
machines,  spiuping  machines,  power,  looms,  etc.,  connected 
with  the  motive  power  of  the  steam  engine  by  bands  and  straps, 
but  in  no  wise  attached  to  the  building,  except  by  cleats,  or 
other  means  to  confine  them  to  their  proper  places  for  use,  and 
subject   to   removal   whenever  enience   or   business    may 

require,  without  injury,  are  not  fixtures,  but  chattel  property." 
It  was  held  in  that  case  that  the  engine  and  boiler  were  fixtures. 
In    Parsons  v.    Copeland,   38   Me.   537,   it  was  held  that  the 
looms,  carding  machines,  etc.,  belonging  to  a  woolen  factory, 
and  placed  thereon  by  the  owners  of  the  freehold,  were  fixtures, 
and  pass  with  the  realty.     It  is  said  by  the  court  that  "It  can 
not  be  denied  that  the  physical  attachment  of  certain  articles  to 
ihe  freehold  is  a  very  uncertain  and  unsatisfactory   criterion. 
We  have  seen   that  it  is  well  settled  that  the  same  attachment 
will  not  change  the  character  of  the  article,  when  made  under 
one  species  of  tenancy,  when  under  another,  with  much  less  of 
a  permanent  connection,  it  will  cause  the  article  to  become  a 
part  of  the  real  estate.     Millstones,  the  gear  of  the  mill,  and 
the  water  wheel  to  which  the  power  is  applied,  and  the  articles 
connected,  which  are  universally  conceded  to  be  fixtures,  and 
to  pass  with  the  realty,  may  be  taken  from  their   appropriate 
places  without  the  withdrawing  of  a  spike,  a  pin,  or  a  nail,  or 
the  displacement  of  a  cleat,  their  own  -weight  often  keeping 
them  in  their  intended  position,  and  no  injury  whatever  arise 
to  the  building  from  which  they  are  taken.     •     •     •     But  it  is 
true,  undoubtedly,  that  the  building,  the  water  wheel,  and  the 
gear  designed  for  a  grist  mill  have  peculiarities,  and  are  often 


132       SOME    rF.ClI.IAR    CLASSES    OF    PERSONAL  rROPEllTV. 

very   different  from   the  water  wheel,  the  gear  as  well  as  the 
building  intended  to  constitute  parts  of  a  woolen  factory.     And 
the  machinery  in  the  former  consisting  of  the  millstones,  the 
cleansing  apparatus,  the  bolts,  the  belts  with  their  appendages, 
to  carry  the  grain  to  the  cleanser  and  the  meal  to  the  bolts,  all 
of  which  are  believed  sometimes,  if  not  generally,  to  be  moved 
by  means  of  the  belts   connected  with   the  gear  of  the  mill, 
together  with  the  hopper,  the  hoops,  trough,  etc.,   are  as  easily 
removed   as  are  the  cards,   the  looms,  and  the  pickers  m  the 
latter.     If  the  building  is  designed  for  a  woolen  factory,  the 
wheels  and  gearing  to  which  the  motive  power  is  applied,  con- 
structcd   in  a  manner  suited  to  promote   the  intended   object, 
after   the    machines    are    placed    in    the   buildings,   it   is  only 
another  step  in  the  prosecution  of  the  design,  and  it  is  not  easy 
to  understand  wherein  the  latter  fnil  to  have  the  properties  of 
the  former;  or  how  one  can  have  distinguishing  characteristics 
from  the  other,  so  that  oue  is  to  be  treated  as  personal  property, 
whilst  the  other  is  real  estate." 

The  three  requisites  laid  down  in  the  case  of  Teaff  v.  Hewitt, 
as  constituting  a  fixture,  it  is  said,  must  all  combine.     The  first 
being  physical  attachment,  all  the  cases  hold,  is  a  very  uncer- 
tain mid  unsatisfactory  criterion,  and,  in  our  opinion,  the  only 
value  to  be  attached  to  it  is  in  determining  the  intention  of  the 
owner  of  the  freehold  in  making  che  annexation.     If  it  be  so 
affixed  that  its  removal  would  materially  injure  the  building, 
this  is.evidcnce  of  an  intention  to  make  it  a  permanent  aimexa- 
tion.     The  second  requisite  being  application  to  the   use  or 
purpose  to  which  that  part  of  the  realty  with  which  it  is  con- 
nected is  appropriated,  is  in  this  case  fully  met  by  the  use  of 
this  machinery  in  a  woolen  mill,  and  without  which   the  mill 
itself  would  be  useless.     The  third  requisite  being  the  intention 
of   the    party   making   the    annexation  to   make  a   permanent 
accession   to   the   freehold,    is,   to   our  minds,  the  controlling 
\  consideration  in  determining  the  whole  question.     The  char- 
^  acter    of   the    physical    attachment,    whether  slight  or   other- 
wise,  and  the   use   are   mainly   important  in  determining  the 
intention  of  the  party  making  the  annexation.     And  herein  lies 
the  reason  of  the  rule,  that  many  articles  of  property  are  mere 
chattels  as  between  landlord  and  tenant  which  are  fixtures  as 
between  heirs  and  executor,  or  vendor  and  vendee.     A  mere 


OPEllTY. 

as  well  as  the 
factory.  And 
millstones,  the 
ir  appendages, 
J  the  bolts,  all 
f,  to  be  moved 
ir  of  the  mill, 
,,   are  as  easily 

pickers  in  the 
en  factory,  the 
s  applied,  con- 
itended  object, 
igs,  it  is  only 
id  it  is  not  easy 
e  properties  of 

characteristics 
sonal  property, 

?eaff  V.  Hewitt, 
line.     The  first 
is  a  very  uncer- 
pinion,  the  only 
intention  of  the 
Dn.     If  it  be  so 
•e  the  building, 
manent  annexa- 
1  to  the   use  or 
which  it  is  con- 
it  by  the  use  of 
which   the  mill 
ing  the  intention 
ke  a   permanent 
,  the  controlling 
ion.     The  char- 
slight  or   other- 
determining  the 
And  herein  lies 
roperty  are  mere 
h  are  fixtures  as 
endee.     A  mere 


OTTUMWA    WOOI.EX    MILLS    CO.    V.     HAWLEY. 


'33 


tenant  for  a  brief  period  is  not  held  as  intending  to  be  making 
permanent  annexations  to  the  freehold.     In  our  view,  the  court 
in   the  case  of  Teatf  v.   Hewitt,  supra,  after  announcing  the 
above  requisites,  in  applying  them  to  the  case,  holds  physical 
attachment  to  be  the  principal  criterion,  leaving  out  of  view  the 
main  consideration,  viz.,  the  intention  of  the  party  making  the 
annexation.     It  being  conceded  by  all  the  cases  that  the  engine, 
boiler,  and  attachments,  being  the  motive  power,  arc  fixtures, 
and  that  the  stones,  or  burrs,  of  a  grist  mill,  with  the  attach- 
ments, are  likewise   fixtures,  it  is  not  easy  to  understand  why 
any  dividing  line  should  be  made  at  the  point  where  the  belting 
attaches   to   the   other   machinery.     Is   there    anything  in  the 
whole  record  of  this  case  tending  to  show  that  the  machinery  in 
question  was  intended  to  be  any  less  permanent  than  the  engine, 
shafting,   or  belt.?     The  fair  presumption    is,   that  the  whole 
machinery,  including  that  now  in  question,  was  placed  in  the 
building  with  the  intention  that  they  should  remain  there,  as 
part  of  the  manufactory,  until  worn  out  or  displaced  by  others. 
This  assumption  is  as  strong  and  controlling  as  to  the  carding 
machines,  spinning  jacks,  etc.,  as  it  is  to  the  engine,  shafting, 
and  belts.     Our  conclusion  is,  that  all  of  the  machinery  which 
was  propelled  by  the  engine,  was  part  of  the  real  estate,  and 
passed  with  Mie  foreclosure  and  sheriff's  deed.     It  may  be  said 
that  the  boiler  was  encased  in  a  brick  wall,  and  by  reason  of 
being   thus   firmly    attached,    it   was    a   fixture,    and  that   the 
machines  in  question  were  capable  of  removal,  and  that  this 
denoted  an  intention  not  to  change  their  character  from  chattels 
to  that  of  fixtures.     The   ready  answer  to  this  is,  that  all  the 
authorities  hold  that  the  motive  power  of  a  mill  or  manufactory 
is   part   of   the   real   estate,  whether  firmly    attached  or   not. 
Steam  engines  are   manufactured  and  sold  as  engines,  without 
reference  to  any  particular  business  or  mill  where  they  may  be 
placed,  and  are  as  capable  of  being  used  in  buildings  indiscrim- 
inately as  power,  looms,  spinning  jacks,  or  carding  machines. 
In  conclusion  it  may  be  proper  to  say  that  this  cause  was  sub- 
mitted at  the  June  term,  1875.     Since  that  time  the  personnel 
of  the   court  has  materially   changed,  and  the  conclusion  now 
announced  is  the  opinion  of  each  member  of  the  court  as  then 
and  now  constituted.     The  cause  will  be  reversed  and  remanded 
with  directions  to  ascertain  the  value  of  such  of  the  property  in 


\ 


J 


134       SOME    PECULIAR    CLASSES    OF    PERSONAL  PROPERTY. 

question  as  is  not  in  any  manner  part  of  the  machinery  operated 
by   the  motive   power,   and    as    to    such   value    phiintiff    will 

be  entitled  to  a  judgment.  , 

Reversed.'^ 


vsuLT— Foot  V.  Goodie,  96  N.  C.  265,  60  Am.  Rep.  4"  ;  Wheeler 
idell,  40  Mich.  693;  I'ope  v.  Shinkle,  45  N.  J.  (L.)  39;  P--*"""  ;• 
re,  16  W.  Va.  428-  37   Am.  Rep.  789;    Spruhen  v.  Stout,  52  Wis. 


CONf 

V.  Bedell,  ^u  I'm-n.  >jvj)  •  "i-~     ••  — -•    -^ 

Moore,  16  W.  Va.  428,37   Am.  Rep.  789;    Spi 
517;  Copp  V.  Swift,  26  S.  W.  Rep.  438- 


•§  28.    Same-Between  heir  and  executor  or  administrator. 

KINSELL  V.  BILLINGS. 

[35  lo-.va,  IJ4.3 

Supreme  Court  of/ozva,  1872. 

Miller,  J.— On  the  trial  the   defendant  requested  the  court 
to  give  the  following,  among  other  instructions,  viz. :      "If  you 
find   from   the   evidence    that   said    property,  when  defendant 
took  possession  of  it,  was  attached  to  the  real  estate  in  the  form 
of  a  sawmill,  dam,  etc.,  it  was  a  part  of  and  belonging  to  the 
real  estate,  unless  vou  further  find  that  it  was   placed   there  by 
virtue  of   a  lease, 'with  a  right  to  remove  at   the  end  of  said 
lease,  or  was  put  there  by  consent  of  or  with  the  knowledge  of 
the  owner  of  the   real   estate,  and  without  his  objection ;  and 
unless  it  was  so  put  there  under  a  lease  or  with   the  cbnsent  or 
knowledge  of  the  owner  of  the  said  real  estate,  and  without 
his  objection,  it  was,  in  contemplation  of  law,  a  part  of  the  real 
estate ;  and  in  order  to  entitle  plaintiff  to  recover  he  must  show 
such  lease  from  said  owner,  or  knowledge  on   his  part  of  said 
improvements." 

The  court  refu.sed  to  give  the  instruction,  and  this  rulmg  i» 
assigned  as  error.  This  instruction  should  have  been  given. 
The  evidence  tended  very  strongly,  to  say  the  least,  to  show 
that  the  mill  was  a  part  of  the  realty.  It  was  erected  by  one 
who  at  the  time,  claimed  to  be  owner  of  the  land  on  which  it 
was  situated,  and  it  was  built  in  a  permanent  manner,  "partly 
in  the  bed  of  the  river  and  partly  in  the  bank;"  the  injury  to 
the  mill,  therefore,  would  be  an  injury  to  the  real  property  and 


tOPERTY. 

liiiery  operated 
plaintiff    will 

Reversed.'^ 

;p.  411;  Wheeler 
^.)  39;  Patton  V. 
IT.  Stout,  52  Wis. 


administrator. 


KINSELL    V.    niLLlXGS. 


135 


uested  the  court 
,  viz.:      "If  you 
when  defendant 
;state  in  the  form 
)elonging  to  the 
placed   there  by 
the  end  of  said 
he  knowledge  of 
5  objection ;  and 
1   the  cbnsent  or 
lite,  and  without 
a  part  of  the  real 
er  he  must  show 
his  part  of  said 

nd  this  ruling  is 
lave  been  given, 
le  least,  to  show 
IS  erected  by  one 
!  land  on  which  it 
t  manner,  "partly 
ik;"  the  injury  to 
real  property  and 


the  right  of  action  would  accrue  to  the  heir,  and  not  to  the 
administrator.  As  between  landlord  and  tenant,  the  rule  of  law, 
that  whatever  is  annexed  to  the  realty  in  the  form  of  buildings, 
etc.,  becomes  a  part  thereof,  is  liberally  construed  in  favor  of 
the  tenant;  but,  as  between  the  heir  and  the  executor  or  admin- 
istrator, the  rule  obtains  with  the  greatest  rigor  in  fnvor  of  the 
inheritance,  and  against  the  right  to  consider  as  a  personal  chat- 
tel anything  which  has  been  affixed  to  the  freehold.  3  Kent's 
Com.,  sec.  25,  pp.  344,  345?  '  ^ash.  on  Real  Prop.,  10-12, 
and  cases  cited. 

It  is  too  wcll^understood  to  require  tue   citation  of  authorities 
that  the  real  estate  of  the  intestate  descends  to  the  heirs-at-law, 
and  that  the  personal  property  only  goes  to  the   administrator, 
unless  the  latter  proves  inadequate  for  the  payment  of  the  debts 
of  the  intestate  when  under  the  statute  the  administrator  may  be 
empowered  to  sell  enough  of  the  real  property  to  make  up  the 
deficit.     See  Rev.,  sees.  2374,  3375.     An  administrator  has  no 
right  to  receive   the  rents   of  real  property  accruing  after  the 
death  of  the  intestate.     Foteaux  v.  Lepage,  6  Iowa,  123,    130; 
Lepage  v.  McNamara,  3  Id.  124  ;  Bcc/ley  v.Burgett,  15  Id.  193. 
At  the  common  law  the  administrator  had  no  control  over  the 
real  estate  or  over  the  rents  and  profits  thereof,  and  such  is  still 
the  law,  except  where  the  statute  provides  otherwise. 

Under  the  statute  the  administrator  may  maintain  an  action 
of  forcibleentry  (Rev.,  sec.  3954)  ;  and  by  chapter  139  of  Laws 
of  1S66  it  is  provided,  that  "If  there  be  no  heirs  or  devisees  of 
a  testator  or  intestate  present,  or  competent  to  take  possession  of 
the  real  estate  left  by  such  testator  or  intestate,  the  executor  or 
administrator  of  his  personal  estate  may,  as  trustee  for  the 
-proper  hers  or  devisees,  take  possession  of  such  real  estate  and 
demandand  receive  the  rents  and  profits  arising  therefrom,  and 
sue  for  and  receive  the  same,  and  do  all  other  acts  and  things 
relatin-  to  such  real  estate  which  may  be  for  the  benefit  of  the 
person" entitled  thereto,   and   consistent  with   their  rights  and 

interests."     Sec.  3. 

Whether,  under  this  provision  of  the  statute,  an  action  for 
an  injury  to  the  real  estate  may  be  maintained  by  the  executor 
or  administrator,  we  need  not  decide,  for  it  is  apparent  that 
this  action  is  not  intended  to  be  brought  thereunder.  The 
administrator  or  executor  may,  "a^  trustee  for  the  proper  heirs 


I 


136      SOME   PECULIAR   CLASSES   OF   PEIISONAL   PROPERTV. 

or  devisees,''  take  possession  and  collect  the  rents  ^nd  profits, 
etc.,  only  when  there  are  "no  heirs  or  devisees  of  the  testator 
or  intestate  present  or  competent  to  take  possession." 

When  acting  under  this  statute,  the  executor  or  administrator 
does  so  "as  trustee  for  the  proper  heirs  or  devisees."  and  for 
their  use  and  benefit,  and  not  simply  in  his  capacity  as  cKecutor 
or  administrator;  and  when  suing  under  this  provision,  the 
existence  of  the  facts  which  authorize  him  to  sue  for  their  bene- 
fit should  be  averred,  viz.:  That  there  are  no  heirs  or 
devisees  present  or   competent  (as  the  case  may  be)  to  take 

possession. 

The  judgment  of  the  circuit  court  is  reversed. 

CoN-suLT-Brickley  v.  Brickley,  n  Barb.  43;  Tuttle  v.  P  oinson,  33 
N.  H.  104;  Bainway  v.  Cobb,  99  Mass.  437;  Clark  v.  Bu,. aside,  15  111. 
62;  Bradner  v.  Faulkner,  34  N.  Y.  347- 


§  29.    Same— Between  mortgagor  and  mortgagee. 
WINSLOW  V.  MERCHANTS'  INS.  CO. 

[4  Mete.  310.] 
Supreme  Judicial  Court  of  Massachusetts,  1842. 

Shaw,  C.  J.— The  court  are  of  opinion  that  the  steam 
engine  and  boilers,  and  all  the  engines  and  frames  adapted  to 
be  moved  and  used  by  the  steam  engine,  by  means  of  connect- 
ing  wheels,  bands,  or  other  gearing,  as  between  mortgagor  and 
mortgagee,  are  fixtures,  or  in  the  nature  of  fixtures,  and  con- 
stituted a  part  of  the  realty ;  and  that  as  all  these  fixtures  were 
annexed  to  and  made  part  of  the  realty  by  the  mortgagor  they 
are  part  of  the  mortgaged  premises,  and  passed  by  the  first 
mortgage  to  the  defendants. 

A  different  rule  may  exist  in  regard  to  the  respective  rights 
of  tenant  and  landlord,  tenant  for  life  and  remainder-man  or 
reversioner,  and  generally  when  one  has  a  temporary  and  not  a 
permanent  interest  in  land.  In  those  cases  the  rule  as  to  what 
shall  constitute  fixtures  is  much  relaxed  in  favor  of  those  who 
make  improvements  on  the  real  estate  of  others  for  the  pur- 


OPERTV. 

s  '•.nd  profits, 
f  the  testator 
)n." 

•  administrator 
ees''  and  for 
;ity  as  executor 
provision,  the 
for  their  bene- 
;  no  heirs  or 
ly  be)  to  take 

Lirt  is  reversed. 

V.  P  oinson,  33 
Bui.  aside,  15  UK 


gagee. 

i.  CO. 

Us,  1842. 

that  the  steam 
imes  adapted  to 
ans  of  connect- 
1  mortgagor  and 
futures,  and  con- 
se  fixtures  were 
mortgagor  they 
sed  by  the  first 

respective  rights 
:mainder-man  or 
porary  and  not  a 
e  rule  as  to  what 
ox  of  those  who 
ers  for  the  pur- 


WINSLOW    V.    MEnCHANTS'    INS.    CO. 


"37 


poses  of  trade  or  other  temporary  use  and  enjoyment.     Gaffield 
V    Ilapgood,    17   Pick.    192.     But  the  case  of  mortgagor  and 
mortcragce  stands  upon  a  different  footing.     The  mortgagor,  to 
most'purposes,  is  regarded  as  the  owner  of  the  estate;    mdeed, 
be  is  so  regarded  to  all  purposes,  except  so  far  as  it  is  necessary 
to  recognize  the  mortgagee  as  legal  owner,  for  the  purposes  of 
his  security.     The  improvements,   therefore,  which  the  mort- 
gagor,  remaining  in  the  possession  and  enjoyment  of  the  mort- 
gac^ed   premises,  makes   upon  them,   in   contemplation  of  law 
he'niakes  for  himself  and  to  enhance  the   general  value  of  the 
estate,  and  not  for  its  temporary  enjoyment;  whereas  a  tenant, 
m.nkin'g   the  same  improvements  upon  the  estate   of    another, 
with  a"view  to  its  temporary  enjoyment,  must  be   presumed  to 
do  it  for  himself,  and   not  for   the  purpose  of  enhancing  the 
value  of  the  freehold.     This  rule,  of  course,  will   apply  only  to 
that   class   of    improvements  consisting  of   articles  added   and 
more  or  less   permanently   affixed  to  the  realty,   in  regard  to 
which  it  is  doubtful  whether   they  arc  thereby  made  part  of  the 
realty  or  not,  and  when   that  question  is  to  be  decided   by  the 
presumed  intent    of    the    party  making    them.     Take,    for   in- 
stance,  the  case  of  a  dye  kettle  set  in  brickwork,  which  is  for 
the  time  annexed  to  the  freehold,  but  which  may  be  removed 
without  essential  injury  to  the  building,  and  so   as  to  leave  the 
premises  in  as  good  a  condition  as  if  it  had  not  been  set.     If  so 
set  by  an  owner  of  the  fee,  for  his  own  use,  it  would,  we  think, 
be  regiirded  as  a  fixture,  an  addition  made  to  the   realty  by  its 
owner,   as   an    improvement,    and    would  pass  to   the  heir  by 
descent,  or  to  the  devisee  by  will.     But  if  the  same   addition 
had  been  made  by  a  tenant  for  years,  for  the  purpose  of  carry- 
iug  on  his  own  business,  we  think  he    would  have  a  right  to 
remove  it,  provided  he  exercise  that  right  whilst  he   has  the 
rightful  possession  of  the  estate— that  is,  before  the  expiration 
of  his  term.      17  Pick.  7ibi  sup. 

Supposing  the  point  to  be  clear,  on  the  one  side,  as  between 
heir  and  executor,  and  on  the  other,  as  between  tenant  and 
landlord,  how  does  it  stand  as  between  mortgagor  and  mort- 
gagee? In  the  case  of  Union  Bank  v.  Emerson,  15  Mass.  159, 
it  was  held  that  such  a  kettle,  set  by  the  owner  of  the  freehold, 
before  the  mortgage,  could  not  be  removed  by  the  mortgagor, 
or  taken  as  his  personal  property,  but  passed  by  the   deed  to 


IjS      SOME    PECUMAU    CLASSES    OF    PERSONAL  PIIOPERTY. 

the  mortgagee.     It  was  considered   an  immaterial  fact  that  the 
mortgage  deed  did  not  mention  appmtcnances ;  probably  upon 
the  ground  that  if  the  kettle  was   an    appurtenance,  and  a  for- 
tiori, if  it  was  parcel,   it  would   pass   without  express  words: 
Kent   V.  Waite,    lo  Pick.   13S,     And  if  it   was  neither,  those 
words  would  not  aid    it.     We    are    aware   that  in  giving   the 
opinion    in   that  case  it  was   stated   by  the  court    that   if   the 
defendant,  after   making  the  mortgage,  had  put  in  the  kettle, 
they    would    have   considered    him    authorized    to    remove    it 
before  delivering  possession  to  the  plaintiffs.     There  is  mani- 
festly some  mistake  in  this  statement.     It  was  not  the  defend- 
ant who  made  the  mortgage ;  he  was  a  purchaser  of  the  kettle, 
the  same  having  been    removed  by   the  mortgagor,   after   the 
plaintiffs  took  possession,  and  been  sold  by  him  to  the  defend- 
ant.    13ut  supposing,  as  is  rather  to  be  inferred  from  the  con- 
text, that  if  the  kettle  had  been  put  in  by  the  mortgagor  after 
the  mortgage  was  made,  the  mortgagor  would  have  had  a  right 
to  remove  it;    it  is  to  be    remarked  that    no   such    point   was 
decided  by  the  court,  nor  was  it  necessary,  upon  the  facts  of  that 
case ;   and   from  the  whole  tenor   of  this   very  short   report  it 
seems  probable  that  the  point  was  not  much  considered. 

In  the  recent  case  of  Noble  v.  Bossvorth,  19  Pick.  314,  it  was 
held  that  such  kettles  erected  by  the  owner  were  to  be  deemed 
part  of  the  realty  and  to  have  passed  by  a  general  deed  of  the 
estate,  unless  specially  excepted.  There  the  case  of  Union 
Bank  v.  Emerson  was  alluded  to ;  but  the  point  was  not  then 
material,  and  the  court  expressly  avoided  giving  any  opinion, 
either  affirming  or  calling  in  question  its  authority  as  to  the 
present  point  of  inquiry,  by  stating  that  whatever  doubt  there 
might  be  as  to  such  fixtures  erected  by  a  tenant  on  leased 
premises,  or  by  a  mortgagor,  after  the  estate  had  been  mort- 
gaged, there  was  none  wheb  erected  by  an  owner. 

It  is  obvious  that  this  question  can  not  arise  where  there  is 
any  express  stipulation  in  the  mortgage  deed  declaring  either 
that  such  improvements  to  be  made,  and  which  are  in  their 
•nature  equivocal,  shall  or  shall  not  be  deemed  fixtures,  and  be 
bound  as  part  of  the  realty.  The  question  is:  What  is  the  rea- 
sonable and  legal  construction  of  a  deed,  granting  an  estate  in 
mortgage,  in  the  usual  terms,  where  there  is  no  stipulation  on 
the  subject?   Such  a  deed  must,  of  course,  include  all  additions 


)PERTY. 

I  fact  that  the 
robably  upon 
:e,  and  a  for- 
cpress  words: 
neither,  those 
in  giving   the 
•t    that   if   the 
in  the  kettle, 
to    remove    it 
here  is  mani- 
•t  the  defend- 
r  of  the  kettle, 
gor,   after   the 
to  the  defend- 
from  the  con- 
ortgagor  after 
ve  had  a  right 
ich    point   was 
10  facts  of  that 
short   report  it 
sidered. 
ick.  314,  it  was 

to  be  deemed 
al  deed  of  the 
case  of  Union 
:  was  not  then 
y  any  opinion, 
ority  as  to  the 
er  doubt  there 
lant  on  leased 
ad  been  mort- 
ar. 

where  there  is 
leclaring  either 
:h  are  in  their 
ixtures,  and  be 
Vhat  is  the  rea- 
a^  an  estate  in 

stipulation  on 
de  all  additions 


WINSI.OW    V.    MEUCHANTS'    INS.    CO. 


«39 


which  become  dc  facto  part  of  the  realty,  and  which  are  not  m 
thc;r  nature  equivocal ;  because  a  title  to  the   wholo   inchules 
every  part.     In  regard  to   articles  iloubtful   in  their   nature   we 
have  already  stated  as  our  opinion  that  if   added   by  the   mort- 
gagor it  is  to  be   considered   as   done  hy   way  of    permanent 
improvement,  for  the  general  benefit  of  the  estate,  and  not  for 
its  temporary  enjoyment.     Hunt  v.  Hunt,  14  Pick.  3S6.     One 
of  the  objects,  and  indeed  one  of  the   most   usual   purposes  of 
mortgaging  real  estate,  is  to  enable  the  owner  to  raise   money 
to  be   expended!   on  its   improvement.     If  such   improvements 
consist  in  actual  fixtures,  not  doubtful  in  their  nature,  thvy  go, 
of  course,  to   the  benefit    and    security  of   the    mortgajjee,  by 
increasing  the  value  of  the  pledge.     The  expectation  of  such 
improvement  and  such  increased  value  often  enter  into  the  con- 
sideration  of  the  parties  in  estim.'iting  the  value  of  the  property 
to  be  bound,  and    its    sufficiency    as   security    for   the    money 
advanced.     And  we  think  the  same  rule  must   apply  to  those 
articles  which  in  their  own  nature  are  doubtful,  whether  actual 
fixtures  or  not.  on  the  ground  of  the  presumed  intention  of  the 
parties.     A  presumption  arises  from  the  relation  in  which  they 
stand  that  such  improvements  are  intended  to  be  permanent  and 
not  temporary,  and  that  the   freehold   and   the   improvements 
intended  to  \)c  made  upon  it  are  not  to  be  severed,  but  to  con- 
stitute one  entire  security.     The  mortgage  is  usually  but  a  col- 
lateral  security  for  money  which  the   mortgagor  binds  hmiself 
to  pay,  and  is  therefore  a  hypothecation  only,  and  not  an  aliena- 
tion of  the  mortgaged  estate.     And  in  this  respect  the  distmc- 
tion  between  the  tenant  for  years  and  the  mortgagor  is  broad 
and  obvious.     The  tenant  for  years  can  have  no    benefit    from 
his  improvements  after  the  expiration  of  his  term  but  by  his 
right  to  remove  them  when  they   are  capable   of  removal ;  but 
the  mortgagor  has  only  to  pay  his  debt,  as  he  is  bound  to  do, 
and  as  it  is  presumed  he  intends  to  do,  and  then  he  has  all  the 
benefit  of  his  improvements  in  the  enhanced  value  of  the  estate 
to  which  they  have  been  annexed.     The  latter,  therefore,  may 
be  presumed  to  have  intended  to  annex  the  improvements  to  the 
freehold  and  make  them  permanent  fixtures,  whilst  the  former 
must   be  presumed,    from    his   obvious    interest,  to   erect   the 
improvements  for  his  own   temporary  accommodation    during 
his  term,  intending  to  remove  them  before  its  expiration. 


!40      SOME   PEClTLIAn   Ct.ASSES  OF   pehsonal  propk hty. 

The  case  of  Gale  v.  Ward,  14  Mass.  352,  is  not,  we  think,  an 
anthority  i.pposed  to  this  opinion;  because  it  is  manifest  tjiat 
the  court,  in  tliat  case,  roj^nrded  the  cardinj,'  machines,  though 
ponderous  and  Indky,  as  essentially  personal  property  which 
mi<,dit  have  been  attached  and  removed  as  the  personal  property 
of  the  owner,  even  though  there  had  been  no  mortgage;  and 
they  had  been  erected  by  the  owner  in  his  own  mill,  for  his  own 

use. 

As  to  what  shall    be  deemed  fixtures  and  part  of   the  realty, 
when  the  (piestion  does  not  arise  as  between  landlord  and  ten- 
ant, or  tenant  for  life  and  remainder-man,  in  regard  to  improve- 
ments  made  by  the  tenant,  it  is  ditticult  to  lay  down   any  gen- 
eral   rule    which    shall  constitute    a  criterion.      The    rule    that 
objects  must  be  actually  and   firmly  affixed   to  the   freehold  to 
become  realty,  or  otherwise  to  be  considered  personalty,  is  far 
from  constituting  such   criterion.     Doors,  window-blinds,  and 
shutters  capable  of  being  removed  without  the  slightest  damage 
to  a  house,  and  even  though  at  the  time  of  a  conveyance,  an 
attachment,  or  a  mortgage,  actually  detached,  would  be  deemed, 
we  suppose,  a  part  of  the  house  and  pass  with  it.     And  so,  we 
presume,  mirrors,  wardrobes,  and  other  heavy  articles  of  furni- 
ture, though  fastened  to  the  walls  by  screws,  with  considerable 
firmness,  must  be  regarded  as  chattels.     The  difficulty  is  some- 
what increased  when  the  question  arises  in  respect  to  a  mill  or 
manufactory,  where  the  parts  are  of  ten  so  arranged  and  adapted, 
so  ingeniously  combined,  as  to  be  occasionally  connected  or  dis- 
engaged as  tile   objects  to  be   accomplished  may  require.     In 
general  terms,  we  think  it  may  be  said  that  when  a  building  is 
erected  as  a  mill,  and  the  water  works,  or  steam  works  which 
are  relied  upon  to  move  the  mill  are  erected  at  the  same  time, 
and  the  works  to  be  driven  by  it  are  essential  parts  of  the  mill, 
adapted  to  be  used  in  it  and  with  it,  though   not  at  the  time  of 
the  conveyance,  attachment,  or  mortgage  attached  to  the  mill, 
are  yet  parts  of  it,  and  pass  with  it  by  a  conveyance,  mortgage, 
or  attachment.     Powell  v.   Monson  &  Brimfield  Manuf.  Co., 
3  Mason,  466;  Farrar   v.    Stackpole,    6    Me.    154;    Gray   y. 
Holdship,  17  S.  &  R.  415;  Voorhis  v.  Freeman,  2  W.  &   S. 

116. 

In  the  present  case,  we  are  of  opinion,  upon  the   evidence 
submitted  to  the   court,  that  the   engine  and  boilers   and   the 


I'KIITY. 

,  we  think,  an 
manifest  ijiat 
lines,  though 
apeity  which 
oiia'i  property 
lortgage ;  and 
1,  for  his  own 

5f   the  realty, 
llord  and  teii- 
d  to  iinproN  e- 
3wn  any  gen- 
'he   rule   that 
le   freehold  to 
ionalty,  is  far 
vv-blinds,  and 
jhtcst  damage 
anveyance,  an 
Id  be  deemed, 
And  so,  we 
tides  of  furni- 
h  considerable 
iculty  is  some- 
ct  to  a  mill  or 
.1  and  adapted, 
nnccted  or  dis- 
y  require.     In 
1  a  building  is 
1  works  which 
the  same  time, 
rts  of  the  mill, 
at  the  time  of 
ed  to  the  mill, 
nee,  mortgage, 
d  Manuf.  Co., 
154;    Gray   v. 
m,  2  W.  &  S. 

1  the  evidence 
oilers   and   the 


WINSLOW    V.     MEHCMANTS'    INS.    CO. 


141 


machines  for  working  Iron  upon  which  they  operated,  consider- 
in-  the  manner  in  which  they  were  fitted  and  adapted  to  the 
mill,  were  fixtures  and  part  of  the  realty,  and  were,  of  course, 
covered  by  a  mortgage  of  the  real  estate. 

We  arc  also  of  opinion  that  all  articles  of  stock,  such  as  non 
and  coal,  and  all  materials  to  be  wrought,  and  the  hand  tools, 
and  ill  implements  not  driven  by  the  steam  engine,  and  articles 
not  annexed  to  the  building,  nor  imbedded  in  the  ground,  nor 
constituting  parts  of  such  mill,  arc  to  be  deemed  personalty,  and 
not  realty,  and  did  not  pass  by  the  first  mortgage  to  the  defend- 
ants. ,    . 

In  regard  to  the  second  mortgage,  as  far  as  it  is  a  mortgage 
of  red  estate,  it  is  not  material  whether  the  first  registration 
was  good  or  not;  because  the  plaintiffs  have  no  claim  to  the 
real  estate.  But  it  is  contended  on  the  part  of  the  defendants 
that  the  mortgage  deed  to  them  of  May  26,  1S36,  was  a  mort- 
gage both  of  real  and  personal  property;  that  it  was  duly  reg- 
istered as  a  mortgage  of  personal  property,  in  the  city  clerk's 
office,  long  before  the  plaintiffs'  mortgage,  and  was  therefore 
sufficient  to  bind  the  personal  property. 

We  think  there  is  a  satisfactory  answer  to  this  claim  fvrnished 
by  the  facts.     This  deed  purported  to  be  a  second  mortga-"  c  f 
the  real  estate  before  mortgaged  to  the  defendants  with  all  and 
singular  the  machinery,  tools,  goods,  chattels,  and  other  prop- 
erty therein  contained,  together  with  all   the  machinery,  tools, 
apparatus,  and  other  property,  whether  fixtures  or  otherwise, 
nozv  being  or  remaining  on   the  premises,  and   also   all  other 
m-ichinery,  engines,  tools,  and  other  property  now  contemplated 
to  be  placed  in  said  building;  said  Pond,  the  mortgagor,  war- 
ranting and  agreeing  that  said  instrument  should  be  effectual  to 
create  a  lien  or  mortgage  on  the  machinery  and  tools  afterward 
to  be  placed  in  said  building;  and  he   moreover  stipulated,  to 
remove  all  doubt,  after  the   machinery  and  tools  should   have 
been  actually  placed  therein,  to  execute  any  instrument  which 
should  be  effectual  and  sufficient  to  create  a  lien  and  mortgage 

thereon.  .  , 

In  point  of  fact,  at  the  time  of  executing  this  instrument,  the 
building  had  not  been  erected,  and  no  machinery  or  tools 
whatever  were  then  placed  in  it.  In  truth,  a  considerable  part 
of  those  claimed  in  this  action  were  not  then  in  existence,  but 


143       SOMi;    PECfLIAn    CI.ASSKS    OF    PERSONAL  PHOPKUTV. 

were  iiiiinufacturcd  afterward.     "Articles  contemplated  to  be 
placed  therein,"  thonj-li  then  in  existence,  without  any  sched- 
ule, enumeration,  or  specitkation  whatever,  is,  as  a  description, 
far  too  indelinitc  and    uncertain   to  constitute  a  lien  upon  the 
articles  afterward  actually  placed    in   the  luiildin},'.     The  cir- 
cumstance that  some  of  tiie  articles  were  in  use  by   the   mort- 
}^agor  at  a  shop  occupied  by   him  m   Water  street,  and   were 
afterward  removed  to  the  shop  in  Ilawlcy  street  can  not  bring 
them  within  the  description,  vague  as  it  is;  because  many  of 
the  articles    so  used    at  the    shop  in    Water    street  were  not 
removed;   others  were  purchased  or  manufactured  afterward; 
and  therefore  it  still  remains  wholly  uncertain  which  of  them 
were  "contemplated"  to  be  put  into  the   new  l/uilding.     The 
stipulation  of  the  mortgagor  to  execute   a    further  instrument 
of  hypothecation  when  the  articles  should  be  put  in,  ami  thus 
made   certain,  was  a  good   executory  contract,  binding  upon 
the  covenantor  personally,  and  for  a  breach  of  which  he  might 
have  ':';en  liable  in    damages,  but  not   an  executed    contract, 
constituting  a  lien  de  facto  upon  articles  not  then  bound  by 
the  mortgage. 

It  was  objected  to  the  plaintiffs'  mortgage  that  it  was  in- 
valid, because  there  was  no  schedule  annexed,  according  to  a 
stipulation  contained  in  it.  But  the  court  are  of  opinion  that 
it  was  good  and  available  for  all  the  articles  which  were  in  the 
shop  at  the  time  it  was  executed,  so  far  as  they  remained  and 
could  l)e  identified,  although  no  schedule  was  annexed.  The 
reference  to  a  schedule  to  be  annexed  was  not  to  limit  or 
restrain  the  generality  of  the  previous  description  of  the 
property,  but  it  was  to  be  inserted  for  greater  certainty  and 
exactness,  and  the  better  to  enable  the  mortgagee  to  identify 
the  articles.  It  was  not,  therefore,  essential  to  the  validity  of 
the  mortgage. 

This  case  was  adjusted  by  the  parties  on  the  principles  of 
the  foregoing  opinion,  and  judgment  was  entered  for  the 
plaintiffs  for  the  sum  of  $1,161.05. 

CoKSULT— Tifft  V.  Horton.  53  N.  Y.  377,  13  Am.  Rep.  537;  Wright 
V.  Gray,  73  Me.  277;  Coleman  v.  Steam  Mfg.  Co.,  38  Mich.  30;  Bass 
Foundry  Works  v.  Gallentene,  99  Ind.  525;  Johnston  v.  Morrow,  60 
Mo.  379;  Pierce  V.  George,  108  Mass.  78,  11  Am.  Rep.  310;  Harkey 
V.  Cain,  69  Tex.  146;  Campbell  v.  Roddy,  44  N.  J.  (Eq.)  244,  6  Am. 
St.  Rep.  8S9;  Hamilton  v.  Huntley,  78  Ind.  521,  41  Am.  Rep.  593. 
Thomas  v.  Davis,  76  Mo.  72. 


I'KUTV, 


SOMi;   I'KCULIAU    CLASSICS    OK    I'KRSONAI.    rUOPKUTY.        I43 


iplatt^l   to  be 
lit  any  sched- 
[i  ilcHcriplion, 
lien  upon  the 
1}^.     The  cir- 
by   the   mort- 
:et,  and   were 
can  not  bring 
ause  many  of 
ect  were  not 
;d  afterward  ; 
•hich  of  them 
lilding.     The 
er  instrument 
t  in,  ami  thus 
binding  upon 
hicli  lie  might 
ited    contract, 
hen  bound  by 

that  it  was  in- 
iccording  to  a 
jf  opinion  that 
:h  were  in  the 
remained  and 
nncxed.  The 
3t  to  limit  or 
iption  of  the 
certainty  and 
gee  to  identify 
the  validity  of 

»   principles  of 
ntered  for   the 


^ep.  537;  Wright 
B  Mich.  30;  Bass 
n  V.  Morrow,  60 
ep.  310;  Harkey 
Eq.)  244,  6  Am. 
I  Am.  Rep.   593. 


§  30.  Bame-Between  vendor  and  vendee. 
MILLER  V.  I'LUMB. 
[6  Cow.  f/.s.] 
Supreme  Court  of  New    Vork,   1827. 

WooinvouTH,    J.— The  first  objection  is  to  the  form  of  the 

record . 

A  continuance  is  entered  from  June  to  October  term ;  and 
then  an  award  of  venire  to  December  term,  then  next,  at 
which  day  came  the  parties;  and  the  jurors  also  came.  This 
is  sutliciently  plain,  and  must  be  understood  that  the  parties 
and  jurors  .appeared  at  December  term.  Although  under  the 
statute  the  continuance  might  have  been  awarded  from  June 
to  December,  without  any  award  of  venire,  the  present  entry  is 
substantially  the  same;  and,  at  most,  is  only  a  miscontinuance, 
which  is  cured  by  the  statute  of  jeofails.  3  John.  183. 

The  more  important  question  is  whether  the  potash  kettles, 
being  affixed   to  the  fneli.jld,   passed  with  the  land.     If  they 
did.  the   court   below    erred;    and  the  judgment  must  be   re- 
versed, unless  the  case    falls  within  some  of  the  qualifications 
or  exceptions   to  the    general    rule.     That  rule    appears  to  be 
well  established ;  whatever  is  aflixed  to   the  freehold   becomes 
part  of  it,    and  can  not  be  removed.     Exceptions  have  been 
admitted  between  landlord  and  tenant;  between  tenant  for  life 
or  in  tail  and  the  reversioner ;  yet  the  rule  still  holds  between 
heir  and  executor.   Bull.    N.  P.   34.     In  Holmes  v.  Tremper, 
20  Johns.30,  Chief  Justice  Spencer  says:  "When  a  farm  is  sold 
without   any  reservation  the   same  rule  would  apply   as  to  the 
right  of   the  vendor  to  remove  fixtures  as  exists  between   the 
heir  aiui  <■■  <'-titov." 

I       I  ElU rough,  in  the   case  of  Elwes  v.  Maw,  3   East, 

.  s  down  the  law  rebitive  to  fixtures  as  arising  between 
ice  classes  of  ersons:  i.  Between  heir  and  executor.  2. 
Between  the  tACCutors  of  tenant  for  life  or  in  tail  and  the 
remainder-man,  or  reversioner.  3.  Between  landlord  and  ten- 
ant; ikI  observes  that  "in  the  first  case  the  rule  obtains  with 
the  most  rigor  in  favor  of  tb-^  inheritance,  and  againft  the  right 


144       SOME    PECULIAR    CLASSES    OF    PERSONAL  PROPERTY. 

to   (lisannex  therefrom,  and  to  consider  as  a  peisonal   chattel 
anythin-  which  has  been  affixed  thereto."     In  the  latter  case 
the  reasons  for  relaxing  the  rule  are  obvious,  upon  motives  of 
public  policy.     The  tenant  is  thereby  encouraged  to  make  mi- 
provements,  and  the  interest  of  trade  promoted,  while  the  land- 
lord or  reversioner  has  no  cause  to  complain,  inasmuch  as  the 
farm  is  restored  to  him  in   the    same   state   as  when  he  parted 
with  it.     A  different  rule  would  effectually  check  all  improve- 
ments by  the  tenant,  where  it  is  known  that    at  the  end  of  the 
term  they  are  to  be  surrendered  to  the   landlord  or  the  rever- 
sioner  of   tenant   for    life.     But   the    case   between   heir    and 
executor   and  vendor    and    vendee   is   widely   different.     The 
ancestor  or  vendor  has  the  absolute  control,  not  only  of   the 
land,  but  of  the  improvements.     The    heir   and   executor  are 
both  representative-^  of  the  ancestor;  the  vendor  has  an  election 
to  sell  or  not  to  sell  the  inheritance. 

If  he  does  elect  to  sell,  he   knows  that  by  law  the  fixtures 
pass;   and  there  is  no  good  reason  why  that  law  should  inter, 
pose  in  his  behalf,  and  protect  him  against  the  loss  oi  improve- 
ments which  he  has  deliberately  chosen  to  part  with.     It  is  for 
reasons  of  this  kind,  I  apprehend,  the  old  rule   of  law  see.ns 
still  to  hold.     In  7  Bac.  25S,  this  is  expressly  recognized.     The 
author  observes  that   although    in   an   action  of  trover  by   an 
executor  against  an  heir  for  a  cider-mill,  tried   at  Worcester, 
before  Lord  C.  B.  Comyns,  his  lordship   was   of  opinion   that 
it  was  personal   estate,  and  directed  the   jury  to  find   for  the 
executor;    yet  Lord    Mansfield  has    observed  that  thaf    case, 
in  all  probability,   turned   upon  a  custom ;  and   that  where  no 
circumstances  of  that  kind  arise  the  rule  still  holds  iii  favor  of 
the  he  r  seems  fully  established  by  the  decision  of  the  Court  of 
King's  Bench,  in  Lavvton  v.  Lawton,  Easter,  22  Geo.  7,.     The 
title  of  the  case  referred  to   seems  to  be  Lawton  v.  v-almon, 
and  is  to  be  found  in  i   H.  Bl.  259,  note  a.     As  reported,  I  do 
not  find  that   Lord   Mansfield,  in  giving  this  opinion   of  the 
court,  says  that  the  case  before  Comyns,  C.  B.,  turned   upon 
a   custom.     Yet  the   whole    scope   of   the   opinion   is   clearly 
against  it.     He  recognizes  the  relaxation  of  the  old  rule  as  con- 
fined to  cases  between  landlord  and  tenant,  and   tenant  for  life 
and  remainder-man ;  where,  for  the  benefit  of  trade,  and  as  an 
encouragement  to  lay  out  money  in  improving  the  estate,  there 


KViili^HHaMriHtaHaiHUBMHBiMBiHIHriM 


RTY. 


VAN    NESS    V.    PACAKD. 


HS 


•nal  chattel 
latter  case 
motives  of 

0  make  ini- 
ile  the  land- 
nuch  as  the 

1  he  parted 
ill  improve- 

end  of  the 
r  the  rever- 
■n  heir  and 
erent.  The 
only  of  the 
executor  are 
s  an  election 

the  fixtures 
should  inter. 
;  oi  improve- 
th.  It  is  for 
f  law  see.ns 
ynized.  The 
trover  by  an 
t  Worcester, 
opinion    that 

find  for  the 
iit  that    case, 
lat  where  no 
s  in  favor  of 
£  the  Court  of 
3eo.  7,.     The 
n  V.  v'almon, 
reported,  I  do 
pinion   of  the 
,  turned   upon 
ion   is   clearly 
id  rule  as  con- 
tenant  for  life 
ade,  and  as  an 
B  estate,  there 


has  been  a  departure  from  the  old  rule,  which  is  no  injury  to 
the  remainder-man,  because  he  takes  the  estate  in  the  same 
condition  as  if  the  thing  in  question  had  never  been  raised. 
He  adds:  "I  can  not  find  that  between  heir  and  executor  there 
has  been  any  relaxation  of  this  sort,  except  in  the  case  of  the 
cider-mill,  which  is  not  printed  at  large."  It  was  a  nisi  prius 
decision,  and  evidently  considered  as  not  controlling  the 
general  law. 

From  this  review  it  appears  to  me  that  the  case  of  vendor 
and  vendee  rests  on  the  same  ground  as  that  of  heir  and 
executor ;  and  that  tiie  fixtures  in  such  cases  are  not  considered 
as  personal  property.  I  incline  to  think  the  evidence  of  con- 
version was  suflScient,  and  that  the  plaintiff  was  entitled  to 
recover  for  some  articles  not  annexed  to  the  freehold ;  but  as 
damages  were  recovered  for  the  whole,  which  can  not  now  be 
severed,  the  judgment  in  the  court  below  must  be  reversed, 
and  a  venire  de  novo  awarded  by  the  Common  Pleas  of  Monroe. 

Judgment  reversed. 

Consult— Weatherby  V.  Sleeper,  42  Miss.  732;  Adams  v.  Beadle,  47 
Iowa,  439,  29  Am.  Rep.  487;  Arnold  v.  Crowder,  81  111.  56,  25  Am.  Rep. 
260;  McConnell  v.  Blood,  123  Mass.  47,  25  Am.  Rep.  12;  Climer  v. 
Wallace,28  Mo.  556,  75  Am.  Dec.  135;  Sands  v.  Pfeiffer,  10  Cal.  263; 
Bowand  v.  Anderson,  33  Kan.  264,  53  Am.  Rep.  529;  Moore  v.  Valen- 
tine, 77  N.  C.  188. 


§  31.    Same— Landlord  and  tenant— Trade  fixtures. 
VAN  NESS  V.  PACARD. 
[2  Pet.  137.] 
Supreme  Court  of  the  United  States,  i82g, 

Mr.  Justice  Story.  -This  is  a  writ  of  error  to  the  cirf  uit 
court  of  the  Distnct  of  Columbia,  sittin?  for  the  county  of 
W-ashington. 

The  original    was  an    action    on   the    case   brought  by   the 

plaintiffs  in   error  against  the  defendant  for  waste   committed 

by  him,   while  tenant  of  the  plaintiffs,   to  their   reversionary 

interest,  by   pulling   down   and   removing   from    the   demised 

10 


!46   SOME  PECULIAR  CLASSES  OF  PERSONAL  PROPERTY. 

premises  a  messuage  or  dwelling  house  erected  thereon  and 
attached  to  the  freehold.  The  cause  was  tried  upon  the 
general  issue,  and  a  verdict  found  for  the  defendant,  upon 
which  a  judgment  passed  in  his  favor;  and  the  object  of  the 
present  writ  of  error  is  to  revise  that  judgment. 

By  the  bill  of  exceptions   filed  at  the  trial   it  appeared  that 
the  plaintiffs  in  1S20  demised  to  the  defendant,  for  seven  years, 
a  vacant  lot  in   the  city  of  Washington,  at  the  yearly  rent  of 
$113.50,  with  a  clause  in  the  lease  that  the  defendant  should 
have  a  right  to  purchase  the  same  at  any  time  during  the  term 
for  $1,875.     After  the  defendant  had  taken  possession  of  the 
lot  he   erected    thereon   a  wooden   dwelling  house,  two  stories 
high  in  front,  with  a  shed  of  one  story,  a  cellar  of  stone  or 
brick  foundation,    and  a  brick  chimney.     The  defendant  and 
his   family  dwelt   in   th  >   house    from  its  erection   until   near 
the  expiration  of  the  lease,  when  he  took  the  same   down  and 
removed  all  the  materials  from  the  lot.     The  defendant  was  a 
carpenter  by  trade;   and  he  gave  evidence,  that  upon  obtaining 
the  lease  he  erected  the  building  above  mentioned  with  a  view 
to  carry  on  the  business  of  a  dairyman,  and  for  the  residence 
of  his  family  and  servants  engaged  in  his  said  business ;  and 
that  the  cellar,  in  which  there  was  a  spring,   was   made   and 
exclusively  used  for  a  milk  cellar,  in  which  the  utensils  of  his 
said  business  were  kept  and  scalded,  and  washed,  and  used ; 
and  that  feed  was  kept  in  the  upper  part  of  the  house,  which 
was    also   occupied  as  a  dwelling   for   his   family.     That  the 
defendant  had  his  tools  as  a  carpenter,  and  two  apprentices  m 
the   house,    and    a  work-bench   out  of  doors;    and  carpenter's 
work  was  done  in  the  house,  which  was  in  a  rough,  unfinished 
state  and  made  partly  of  old  materials.     That  he  also  erected 
on  the  lot  a  stable  for  his  cows  of  plank  and  timber  fixed  upon 
posts  fastened  into  the  ground,  which  stable  he  removed  with 
the  house  before  the  expiration  of  his  lease. 

Upon  this  evidence  the  counsel  for  the  plaintiffs  prayed  for 
an  instruction,  that  if  the  jury  should  believe  the  same  to  be 
true,  the  defendant  was  not  justified  in  removing  the  said 
house  from  the  premises ;  and  that  he  was  liable  to  the  plain- 
tiffs in  this  action.  This  instruction  the  court  refused  to  give ; 
and  the  refusal  constitutes  his  first  exception. 


OPERTY. 

1  thereon  and 

led    upon   the 

fendrnt.   upon 

object  of  the 

appeared  that 
or  seven  years, 

yearly  rent  of 
fendant  should 
luring  the  term 
ssession  of  the 
se,  two  stories 
iar  of  stone  or 

defendant  and 
tion  until  near 
ame  down  and 
lefendant  was  a 

upon  obtaining 
ed  wtt/i  a  view 
)X  the  residence 
i  business ;  and 

was  made  and 
I  utensils  of  his 
shed,  and  used ; 
le  house,  which 
mily.  That  the 
o  apprentices  in 

and  carpenter's 
ough,  unfinished 

he  also  erected 
imber  fixed  upon 
le  removed  with 

intiffs  prayed  for 
the  same  to  be 
moving  the   said 
ible  to  the  plain- 
refused  to  give ; 


VAN    NESS    V.    PACARD. 


H7 


The  defendant  further  offered  evidence  to  prove  that  a  usage 
and  custom  existed  in  the  city  of  Washington,  which  author- 
ized  a  tenant  to  remove  any  building  which  he  might  erect 
upon  rented  premises,  provided  he  did  it  before  the  expiration 
of  the  term.  The  plaintiffs  objected  to  this  evidence;  but  the 
court  admitted  it.     This  constitutes  the  second  exception. 

Testimony  was  then  introduced  on  this  point,  and  after  the 
examinations  of  the  witnesses  for  the  defendant,  the  plaintiffs 
prayed  the  court  to  instruct  the  jury  that  the  evidence  was  not 
competent  to  establish  the  fact  that  a  general  usage  had  existed 
or  did  exist  in  the   city  of    Washington  which   authorized   a 
tenant  to  remove  such  a  house  as  that  erected  by  the  tenant  in 
this  case ;  nor  was  it  competent  for  the  jury  to  infer  from  the 
said  evidence  that  such  a  usage  had  existed.     The  court  refused 
to  give  this  instruction,  and  this  constitutes  the  third  exception. 
The  counsel  for  the  plaintiffs  then  introduced  witnesses  to 
disprove  the   usage ;   and  after  their  testimony  was  given,  he 
prayed  the  court  to  instruct  the  jury,  that  upon  the  evidence 
given  as  aforesaid  in  this  case,  it  is  not  competent  for  them  to 
find   a  usage  or  custom  of  the  place  by  which  the  defendant 
could  be  justified  in  removing  the  house  in  question ;  and  there 
being  no  such  usage,  the  plaintiffs  are  entitled  to  a  verdict  for 
the  value  of  the  house  which  the  defendant  pulled  down  and 
destroyed.     The   court    was    divided    and   did    not  give   the 
instruction  so  prayed ;  and  this  constitutes  the  fourth  exception. 
The  first  exception  raises  the  important  question :    What  fix- 
tures erected  by  a  tenant  during  his  term  are  removable  by 

him?  .      V         u 

The  general  rule  of  the  common  law  certainly  is  that  what- 
ever is  once  annexed  to  the  freehold  becomes  part  of  it,  and 
can  not  afterward  be  removed,  except  by  him  who  is  entitled 
to  the  inheritance.  The  rule,  however,  never  was,  at  ler"t  as 
far  back  as  we  can  trace  it  in  the  books,  inflexible  and  wi'hout 
exceptions.  It  was  construed  most  strictly  between  executor 
and  heir  in  favor  of  the  latter;  more  liberally  between  tenant 
for  life  or  in  tail,  and  remainder-man  or  reversioner,  in  favor 
of  the  former ;  and  with  much  greater  latitude  between  land- 
lord  and  tenant  in  favor  of  the  tenant.  But  an  exception  of  a 
much  broader  cast,  and  whose  origin  may  be  traced  almost  as 
high  as  the  rule  itself,  is  of  fixtures  erected  for  the  purposes  of 


148   SOME  PECULIAR  CLASSES  OF  PERSONAL  PROPERTY. 

trade.     Upon   principles  of  public  policy,   and  to  encourage 
trade  and  manufactures,  fixtures  which  were  erected  to  carry 
on  such  business  were   allowed  to  be  removed  by  the  tenant 
during  his  term,  and  were  deemed  personalty  for  manv  other 
purposes.     The  principal  cases  are  collected  and  reviewed  by 
Lord  Ellenborough  in  delivering  the  opinion  of  the  court  in 
Elwes  V.  Maw,  3  East,  3S ;  and  it  seems  unnecessary  to  do  more 
than  to  refer  to  that  case  for  a  full  summary  of  the  general 
doctrine  and  its  admitted  exceptions  in  England.     The  court 
there  deckled,  that,  in  the  case  of   landlord  and  tenant,  there 
had  been  no  relaxation  of  the  general  rule  in  cases  of  erections 
solely  for  agricultural  fur f  OSes,  however  beneficial  or  import- 
ant they  might  be  as  improvements  of  the  estate.     Being  once 
annexed  to  the  freehold  by  the  tenant  they  became  a  part  of  the 
realtv    and    could  never  afterward  be  severed  by  the  tenant. 
The  distinction  is  certainly  a  nice  one  between  fixtures  for  the 
purposes  of  trade  and  fixtures  for  agricultural  purposes ;  at  least 
in  those   cases  where  the  sale  of  the   produce   constitutes   the 
principal   object  of  the  tenant,  and  the  erections  are  for  the 
purpose  of  such  a  beneficial  enjoyment  of  the  estate.     But  that 
point  is  not  now  before  us ;   and  it  is  now  unnecessary  to  con- 
sider what  the  true  doctrine  is,  or  ought  to  be  on  this  subject. 
However  well  settled   it  may  now  be  in  England,  it  can  not 
escape  remark  that  learned  judges  at  different  periods  in  that 
country  have  entertained  different  opinions  upon  it,  down  to 
the  very  date  of  the  decision  in  Elwes  v.  Maw,  3  East,  38. 

The   common   law    of   England'  is  not  to  be  taken  in    all 
respects  to  be  that  of  America.     Our  ancestors  brought  with 
them  its  general  principles,  and  claimed  it  as  their  birthright ; 
but  they  brought  with  them   and    adopted  only   that  portior\ 
which  was  applicable  to  their  situation.     There  could  be  little 
or  no  reason  for  doubting  that  the  general  doctrine  as  to  things 
annexed  to  the  freehold  so  far  as  it  respects  heirs  and  executors 
was  adopted  by  them.     The  question  could  arise  only  between 
different  claimants  under  the  same  ancestor,    and  no  general 
policy  could  be  subserved  by  withdrawing  from  the  heir  those 
things  which  his  ancestor  had  chosen  to  leave  annexed  to  the 
inheritance.     But  between  landlord  and  tenant  it  is  not  so  clear 
that  the  rigid  rule  of  the  common  law,  at  least  as  it  is  expounded 
in  3  East,  38,  was  so  applicable  to  their  situation  as  to  give  rise 


)PERTY. 


VAN    NESS    V.    PACAUD. 


149 


to  encourage 
;cted  to  carry 
by  the  tenant 
r  manv   other 
1  reviewed  by 
f  the  court  in 
iry  to  do  more 
»f  the  general 
i.     The  court 
I  tenant,  there 
es  of  erections 
cial  or  import- 
:.     Being  once 
,e  a  part  of  the 
by  the  tenant, 
ixtures  for  the 
rposes ;  at  least 
constitutes   the 
ns  are  for  the 
tate.     But  that 
cessary  to  con- 
m  this  subject, 
and,  it  can  not 
periods  in  that 
on  it,  down  to 
J  East,  38. 
»e  taken  in    all 
s  brought  with 
heir  birthright; 
ly    that  portior\ 
;  could  be  little 
•ine  as  to  things 
-s  and  executors 
se  only  between 
and  no  general 
n  the  heir  those 
e  annexed  to  the 
it  is  not  so  clear 
s  it  is  expounded 
)n  as  to  give  rise 


to  necessary  presumption  in  its  favor.  The  country  was  a  wil- 
derness, and  the  universal  policy  was  to  procure  its  cultivation 
and  improvement.  The  owner  of  the  soil  as  well  as  the  public 
had  every  motive  to  encourage  the  tenant  to  devote  himself  to 
agriculture,  and  to  favor  any  erections  which  should  aid  this 
result ;  yet,  in  the  comparative  poverty  of  the  country,  what 
tenant  could  afford  to  erect  f  itures  of  much  expense  or  value 
if  he  was  to  lose  his  whole  interest  therein  by  the  very  act  of 
erection?  His  cabin  or  log  hut,  however  necessary  for  any 
improvement  of  the  soil,  would  cease  to  be  his  the  moment 
it  was  finished.  It  might,  therefore,  deserve  consideration 
whether,  in  case  the  doctrine  were  not  previously  adopted  in  a 
state  by  some  authoritative  practice  or  adjudication,  it  ought  to 
be  assumed  by  this  court  as  a  part  of  the  jurisprudence  of  such 
state  upon  the  mere  footing  of  its  existence  in  the  common  law. 
At  present  it  is  unnecessary  to  say  more  than  that  we  give  no 
opinion  on  this  question.  The  case  which  has  been  argued  at 
the  bar  may  well  be  disposed  of  without  any  discussion  of  it. 

It  has  been    already  stated  that   the  exception  of  buildings 
and  other  fixtures  for  the  purpose  of    carrying  on  a   trade  or 
manufacture   is   of   very   ancient   date     and     was    recognized 
almost  as  early  as  the  rule  itself.     The  very  point  was  decided 
in  20  Henry  VII,  13,  a.  and  6.,  where  it  was  laid   down,  that 
if  a  lessee  for  years   made  a  furnace  for  his  advantage,  or  a 
dyer  made  his  vats  or  vessels  io  occupy  his  occupation,  during 
the  term,  he  may  afterward  remove  them.      That  doctrine  was 
recognized  by  Lord  Holt  is' Poole's  Case,   i  Salk.  36S,  in  favor 
of  a  soap-boiler  who  was   tenant  for  years.     He  held  that  the 
party  might    well    remove  the    vats  he  set   up  in  relation  to 
trade,  and  that  he  might  do   it  by  the  common  law  (and  not 
by  virtue  of  any  custom)  in  favor  of  trade  and  to  encourage 
industry.      In  Lawton  v.  Lawton,  3    Atk,   13,  the  same  doc- 
trine was  held  in  the   case  of  a  fire  engine  set  up  to  work  in 
a  colliery  by  a  tenant  for  life.       Lord  Hardwicke  there  said 
that    since   the  time   of   Henry   VII  the   general  ground    the 
courts  have  gone  upon  of  relaxing  the  strict  construction  of  law 
is  that  it  is  for  the  benefit  of  the  public  to  encourage  tenants 
for  life  to  do  what  is  advantageous  to  the  estate  during  the 
term.     He  added,    "one  reason  which   weighs  with  me  is  its 
being  a  mixed  case,  between  enjoying  the  profits  of  the  land, 


I^O 


SOME    PECULIAR    CLASSES    OF    PERSONAL  PROPERTY. 


and  carrying  on  a  species   of   trade;   and    in  considering   it  in 
tliis  light  it  comes  very  near  the  instances  in  brew-houses,  etc., 
of  furnaces  and    coppers."       The    case,  too,  of  a  cider-miU, 
between  the   executor   and  heir,  etc.,  is  extremely  stro.ig,  ^or 
though  the  cider  is  a  part  of  the  profits  of  the  real  estate,  yet  it 
was  held  by  Lord  Chief  Baron  Comyns,  a  very   able   common 
lawyer,  that  the  cider-mill  was  personal  estate  notwithstanding, 
and  that  it  should  go  to  the  executor.     '-It  does  not  differ  it,  in 
my  opinion,  whether  the  shed  be  made  of  brick  or  ■wood,  for  it 
is  only  intended  to  cover  it  from  the  weather  and  other   incon- 
veniences."    In  Pcnton  v.  Robart,  2  East,  88,  it  was  further 
decided  that  a  tenant  might  remove  his  fixtures  for  trade  even 
after  the  expiration  of  his  term,  if  he  yet  remained  in  possession  ; 
and  Lord  Xenyon  recognized  the   doctrine   in  its  most  liberal 

extent. 

It  has  been  suggested  at  the  bar  that  this  exception  m  favor 
of  trade  has  never  been  applied  to  cases   like  that  before  the 
court,  where  a  large  house  has  been  built   and  used   in  part  as 
a  family  residence.       But  the  question,  whether  removable  or 
not,  does  not  depend   upon  the  form   or  size  of  the  building, 
whether   it   has  a   brick  foundation   or  not,  or  is  one  or  two 
stories  high,  or  has  a  brick  or  other  chimney.      The  sole  ques- 
tion is  whether  it  is  designed  for  purposes  of  trade  or  not.       A 
tenant  may  erect  a  large  as  well  as  a  small  messuage,  or  a  soap 
hoilery  of  one  or  two  stories  high,  and  on  whatever  founda- 
tions he  mav  choose.     In  Lawton  v.  Lawton,  3  Atk.    13,  L01.I 
Hardwicke'said  (as  we  have   already   seen)  that  it  made  no 
difference  whether  the  shed  of  the  engine  be  made  of  brick  or 
stone.     In  Penton  v.  Robart,  2  East,  88,  the  building  had  a 
brick  foundation,  let  into  the  ground,  with    a  chimney  belong- 
ing to  it,  upon  which  there  was  a  superstructure  of  wood.     Yet 
the  court  thought  the  building  removable.      In  Elwes  v.  Maw, 
3  East,    37,    Lord   EUenborough    expressly   stated  that    there 
was  no  difference  between  the  building  covering  any  fixed  engine, 
utensils  and  the  latter.     The  only  point  is  whether  it  is   acces- 
sory to  carrying  on  the  trade  or  not.      If  bona  fide  intended  for 
this  purpose  it  falls  within  the  exception  in  favor  of  trade.  The 
case  of  the  Dutch  barns  before  Lord  Kenyon  (Dean  v.  Allal- 
ley,  3Esp.  Rep.  n  ;  Woodfall's  Landlord  and  Tenant,  219)  is 
to  the  same  effect. 


ROPERTY. 

msidering  it  in 
w-houses,  etc., 
of  a  cider-mill, 
lely  strong,  ^or 
eal  estate,  yet  it 
f  able  common 
lotwithstanding, 
i  not  differ  it,  in 

or  -wood,  for  it 
nd  other  incon- 
,  it  was  further 
s  for  trade  even 
ed  in  possession ; 

its  most  liberal 

xeption  in  favor 
that  before  the 
used   in  part  as 
ler  removable  or 
of  the  building, 
3r  is  one  or  two 
The  sole  ques- 
rade  or  not.       A 
ssuage,  or  a  soap 
vhatever  founda- 
3  Atk.   13,  Loiu 
that  it  made  no 
made  of  brick  or 
e  building  had  a 
chimney  belong- 
re  of  wood.     Yet 
n  Elwes  v.  Maw, 
stated  that    there 
J  any  fixed  engine, 
ether  it  is   acces- 
Jide  intended  for 
vor  of  trade.  The 
n  (Dean  v.  AUal- 
id  Tenant,  219)  is 


VAN    NESS    V.    PACARD. 


»5' 


Then  as  to  the  residence  of  the   family  in   the   l^juse,  this 
resolves  itself  into  the  same  consideration.       If  th^  house  were 
built  principally  for  a  dwelling  house  for  the  family,  mdcpend- 
ently   of    carrying  on  the    trade,  then    it   would   doubtless  be 
deemed  a  fixture,  falling  under  the   general   rule,    and  nnmov- 
able.     But  if  the  residence  of  the  family  was  merely  an  acces- 
sory for  the  more  beneficial  exercise  of  the  trade,  and  with  u 
view  to  superior  accommodation  in  this  particular,  then  it  is 
within  the  exception.     There  are    many  trades   which  can  not 
be  carried  on   well  without  the    presence  of  many  persons  by 
night  as  well  as  by  day.     It  is  so  in  some  valuable    manufac- 
tories     It  is  not  unusual  for  persons  employed  in  a  bakery  to 
sleep  in  the  same  building.      Now,  what  was  the  evidence  in 
the   present   case.?      It   was,  "that  the  defendant  erected  the 
building  before  mentioned,  with  a  view  to  carry  on  the  business 
of  a  dairyman,  and  for  the  residence  of  his  family  and  scrv- 
arts  engaged  in  that  business."     The  residence  of   the  family 
was  then  auxiliary  to  the  dairy;  it  was  for  the  accommodation 
and  beneficial  operations  of  this  trade. 

Surely,    it   can   not  be  doubted,    that  in  a  business  of  this 
nature  the  immediate  presence  of  the  family  and  servants  was, 
or  might  be,  of  very  great  utility  and  importance.    The  defend- 
ant was  also  a  carpenter,  and  carried  on  his  business  as  such  in 
the  same  building.     It  is  no  objection   that  he  carried  on  two 
trades  '.nstead  of  one.     There   is  not  the  slightest  evidence  of 
this  one  being  a  mere  cover   or   evasion    to   conceal    another, 
which  was  the  principal  design;  and  unless  we  are  prepared  to 
say  (which  we  are  not)  that  the  mere  fact  that  the  house  was 
used  for  a  dwelling  house  as  well  as  for  a  trade  superseded  the 
exception  in  favor  of  the  latter,  there  is  no  ground  to  declare 
that  the  tenant  was  not  entitled    to  remove   it.       At  most,  it 
would  be  deemed  only  a  mixed  case,  analogous  in  principle  to 
those  before  Lord  Chief  Baron  Comyns,  and  Lord  Hardwicke, 
and,  therefore,  entitled  to  the  benefit  of   the  exception.      The 
case    of   Holmes   v.  Tremper,    20   Johns.  29,    proceeds   upon 
principles    equally    liberal,    and    it   is  quite    certain    that   the 
supreme  court  of  New  York  were  not  prepared  at  that  time  to 
adopt  the  doctrine  of  Elwes  v.  Maw    in  respect  to  erections  for 
agricultural    purposes.       In  our  opinion  the  circuit  court  was 
right  in  refusing  the  first  instruction. 


152       SOME    TECULIAn    CLASSES    OF    PERSONAL  PROPERTY. 

The  second  exception  proceeds  upon  the  ground  that  it  was 
not  competent  to  establish  a  usage  and  custom  in  the  city  of 
Washington  for  tenants  to  make  such  removals  of  buildings 
during  their  term.  We  can  perceive  no  objection  to  such 
proof.  Every  demise  between  landlord  and  tenant  in  respect 
to  matters  in  which  the  parties  are  silent  may  be  fairly  open 
to  explanation  by  the  general  usage  and  custom  of  the  country 
or  of  the  district  where  the  land  lies.  Every  person  under  such 
circumstances  is  supposed  to  be  conusant  of  the  custom,  and 
to  contract  with  a  tacit  reference  to  it.  Cases  of  this  sort  are 
familiar  in  the  books ;  as,  for  instance,  to  prove  the  right  of  a 
tenant  to  an  away-going  crop.  2  Starkie  on  Evidence,  part  4, 
p.  453.  In  the  very  class  of  cases  now  before  the  court  the 
custom  of  the  country  has  been  admitted  to  decide  the  right  of 
the  tenant  to  remove  fixtures.  Woodfall,  Landlord  and  Tenant, 
21S.  The  case  before  Lord  Chief  Justice  Treby  turned  upon 
that  point.     BuUer,  Nisi  Prius,  34. 

The  third  exception  turns  upon  the  consideration  whether  the 
parol  testimony  was  competent  to  establish  such  a  usage  and 
custom.  Competent  it  certainly  was,  if  by  competent  is  meant 
that  it  wa%  admissible  to  go  to  the  jury.  Whether  it  was  such 
as  ought  to  have  satisfied  their  minds  on  the  matter  of  fact  was 
solely  for  their  consideration;  open,  indeed,  to  such  commen- 
tary and  observation  as  the  court  might  think  proper  in  its  dis- 
cretion to  lay  before  them  for  their  aid  and  guidance.  We  can 
not  say  that  they  were  not  at  liberty,  by  the  principles  of  law, 
to  infer  from  the  evidence  the  existence  of  the  usage.  The 
evidence  might  be  somewhat  loose  and  indeterminate,  and  so 
be  urged  with  more  or  less  effect  upon  their  judgment;  but  in  a 
legal  sense  it  was  within  their  own  province  to  weigh  it  as  proof 
or  as  usage. 

The  last  exception  professes  to  call  upon  the  court  to  insti- 
tute a  comparison  between  the  testimony  introduced  by  the 
plaintiff  and  that  introduced  by  the  defendant  against  and 
for  the  usage.  It  requires  from  the  court  a  decision  upon  its 
relative  weight  and  credibility,  which  the  court  were  not 
justified  in  giving  to  the  jury  in  the  shape  of  a  positive 
instruction. 

Upon  the  whole,  in  our  judgment,  there  is  no  error  in 
the  judgment  of  the  circuit  court,  and  it  is  affirmed,  with 
costs. 


)PERTY. 

id  that  it  was 
in  the  city  of 
of  buildings 
:tion  to  such 
ant  in  respect 
)e  fairly  open 
)f  the  country 
on  under  such 
i  custom,  and 
f  this  sort  are 
the  right  of  a 
idence,  part  4, 
the  court  the 
\e  the  right  of 
rd  and  Tenant, 
y  turned  upon 

3n  whether  the 
li  a  usage  and 
)etent  is  meant 
er  it  was  such 
ter  of  fact  was 
such  commen- 
■oper  in  its  dis- 
»nce.  We  can 
iciples  of  law, 
i  usage.  The 
ninate,  and  so 
^ment;  but  in  a 
eigh  it  as  proof 

;  court  to  insti- 
oduced  by  the 
it  against  and 
cision  upon  its 
ourt  were  not 
of   a   positive 

is   no   error   in 
affirmed,  with 


GAFFIKLD    V.    HAPGOOD. 


«53 


CoNSULT-Wall  V.   Hinds,  4  Gray,  256,  64  Am.  Dec.  64;  Torrey  v. 
Consult  j^  Re  Hinds,  5  Whart.  13S,  34 

A:"d  fsf-'s  -de'";  StaUings,';  He.sk.  ,s;  Beers  v.  St.  John  .6 
Conn  3  Rayn^ond  v.  White,  7  Conn.  369;  Conrad  v.  Sa«maw  Minin, 
Co  S4  >J  «=h.  249,  S2  Am.  Rep.  817;  Uobschuetz  v.  Holhday,  8.  11. 
^;;:  Snnev  v.  Watklns,  13  Mo.  .9. ;  "arkness  v.  Sears.  26  Ala.  493-  ^- 
im   Dec   743;  Holmes  v.  Tremper,  20  Johns.  29,  n  Am.  Dec.  .39. 


§  32.    Same— Domestio  fixtures. 

GAFFIELD  v.  HAPGOOD. 

[17  Pick.  193;  28  Am.  Dec.  290.] 

Supreme  Judicial  Court  of  Massachusetts,  1835. 

Putnam    T  — The   fireframe   was   without   doubt   personal 
property  before  it  was  fixed  to  the  freehold.     But  afterward  it 
became  a  part  of  the  house,  and  would  have  passed  by  a  deed 
of  the  house  as  a  door  or  window  of  the  house  would  have 
nassed    provided  there  was  no  exception  in  the  deed  to  the  con- 
trarv    '  But  although  it  is  to  be  considered  as  a  fixture,  yet  the 
lessee  during  the  continuance  of  his  lease  might  have  removed 
it      Lawton  V.   Lawton,  3  Atk.    16,  in  notis.     But  he  must 
remove  it  during  the  term.  He  can  not  lawfully  do  it  afterward. 
In  Lee  v.  Risdon,  7  Taunt.  1S8,  Gibbs,  C.  J.,  says,  unless  the 
lessee  uses  the  privilege  of  severing  fixtures  durmg  the  term  he 
can  not  afterward  do  it ;  adding,  "and  it  never  was  heard  of  that 
trover  could  be  afterward  brought." 

While  it  remained  fixed  to  the  freehold,  it  is  clear  that  if  one 
had  unfixed  and  taken  it  away  at  one  time,  it  would   not  have 
been  a  felony,  but  a  trespass.     The  case  of  Penton  v.  Robart, 
2  East,  88,  might  seem  to  recognize  the  right  of  the  tenant  to 
remove  a  fixture  after  the  expiration  of  the  term.     That  was  a 
trespass  for  breaking  a  close  and  removing  the  bu.ld.ng.     I 
was  brought  by  a  landlord  against  the  tenant.     The  defendan 
made    no   defense   to   breaking   and   entering   the    close,  and 
the  plaintiff  recovered  a  shilling  for   that,  but   the   defendant 
pleaded  a  justification  for  removing  the  building  as  set  forth  m 
the  declaration,  that  it  was  a  building  erected  by  h.m  on  the 
premises  for  the  purpose  of  carrying  on  his  trade,  and  that    he 


154       SOMK    PECULIAU    CLASSES    OF    PERSONAL  PKOPKKTY. 

stiU  continued  in  possession  of  M.  frenns..  atthc  ^  me  when 
etc  The  justification  was  held  sufhc.ent.  The  relat.on  ot 
1  ndlord  and  tenant  must  have  been  considered  as  havn..  con- 
ned, and  ..  stiU  cistin.,  in  respectto  the  ^^-^  j--^  ; 
notwithstanding  the  first  term  had  exp.red.  ^  e  cle,  ncU  ,  • 
it  seems  to  me,  might  and  ought  to  have  pleaded  the  gencial 
L; Ts  to  breaking  and  entering  the  close  and  a  3ust.hcat.0n  as 

'"  If  the  tture  should  not  be  removed  during  the  term^,  and  the 
tenant  should  quit,  and  the  landlord  take  l---^"  f  ™^: 
the  law  is  very  clear  that  the  fixture  becomes  a  part  o    the  free 
hold,  and  that  the  party  who  was  tenant  can  not  legally  take  .t 

away  afterward.  .  ,       .,, 

And  there  are   no  facts  stated  in  the  present  case  wh.ch  w.ll 

vary  this  well  established  rule  of  law. 

The  circumstance  that  the  owners  of  the  estate  offered  .t  for 
sale  with  a  reservation  of  the  fireframe  for  the  tenant,  who  was 
hen   n  possession,  is  of  no   avail;  because  the  sde   was  not 
'a  e      The  tenant  sold  the  fireframe  to  the  plaintiff  on  the  day 
ZL  he  left  the  premises.     The   ve..dee   could   ..ot  be   .a 
better  situation  than  the  tenant  was.     He  m.ght,   ll^l'^ 
snid    have  severed  the  frame  from  the   ch.n.ney  wh.le  h.s  t^n- 
.'   y  continued,  but  he  left  the  premises,  with  the  frame  attached 
.'fixed  by  b.  ck  and  mortar  to  the  house.     It  is  very  certa.n 
^t  thereupon  it  became  the  property  of  the  owners  of  the  free- 

'°There  are  various  annexations  to   the  freehold  estate,  which 
if  the  tenant  make  them  at  his  own  expense,  can  not   be  remove 
by  him  during  the  term.    As  if  he  puts  glass  .nto  the  w.ndows 
Co  litt.  53  -  And  the  reason  given  is,  that  the  glass  ,s  become 
p:  t  of  the  house.  It  shall  go  to  the  heir  and  not  to  the  executor^ 
L  as  is  said  in  Herlakenden's  Case,  4  Co    R.  6^    .f  they    U^ 
windows)  be  open  to  the  tempests  and  ra.n,  waste  and  put.c- 
iZon  o   the  fLer  would  follow.     So  I  apprehend  ,t  would 
be     f  the  tenant  should  shingle  the  house,  or  put  another  story 
up'on  it.     Such  necessary  or  even  expensive  reparat.on  or  add.- 
Tn  would,  at  this  day,  be  considered  as  given  to  the  owner  of 

%utte°\tw  has  accommodated  itself  to  the  exiting  advanced 
state  of  society;  and  the  tenant  may,  durmg  the  term,  take 


)1'K11TY. 

le  time  when, 
le  relation  of 
s  huvin<i  con- 
isccl  premises, 
defendant,  as 
d  the  }j;encral 
justitication  as 

•  term,  and  the 
iion  afterward, 
art  of  the  free- 
legally  take  it 

:a8e  which  will 

te  offered  it  for 
enant,  who  was 
e  sale   was  not 
intiff  on  the  day 
Id   not  be   in   a 
ht,  as  has  been 
y  while  his  ten- 
e  frame  attached 
t  is  very  certain 
rners  of  the  free- 
aid  estate,  which 

1  not  be  remove 
ito  the  windows. 

2  glass  is  become 
t  to  the  executor, 
.  62,  if  they  (the 
waste  and  putre- 
prehend  it  would 
put  another  story 
sparation  or  addi- 
n  to  the  owner  of 

existing  advanced 
ig  the  term,  take 


HEDDKllUVH    V.    SMITH. 


«55 


nwnv  chimney-pieces,  and  even  a  wainscot,  if  put  up  by  h.m- 
.elf  (Co.  Litt.  ///'/.«/.,  IIargr.,notc5):  which,  as  the  law 
stoo<l  before  and  at  the  time  of  Lord   Coke,  he  could  not  have 

been  permitted  to  do.  ,    •     ^u 

The    reason  of    the  relaxation    of    the  rule    is  tound    m  the 
public    policy    and    convenience,   which    permit  the   tenant  to 
make  the  most  profitable  and  co.nfortable  use  of   the   premises 
demised  that  can  be   obtained  consistently  with  the   rights  ot 
the  owner  of  the  freehold.     The  inheritance  is  not  to  be  preju- 
diced. 1  •     T-l     «. 
The  law  upon  this  subject  was  very  much  discussed  in  hlwes 
V    Maw,  3  East,  38,  by  the  court   and  bar;  an.l   such   annexa- 
tions  made  with  regard  to  trade   were  recognized ;   but  such 
as  were   made   in   regard   to  agricultural   improvements  were 
still  left  to  the  operation  of  the  old  law;  with  what  correctness 
of  inference,  it  is   not  necessary  in  the   case   now  under   con- 
sideration to  decide.     For  this  case   is  clear  ot  all   d.thculty, 
and  is  decided  in  favor  of  the  defendant  for  the  reasons  belore 
^"^'S^'ted.                                                               ^  pj^._^^.^  ^^^^^.^^ 

CoNstXT-Seeger  v.  Pettit.  77  ?«•  St.  4S7.  18  Am  Rep.  45^j  W»n 
V.  Hinds,  4  Gray,  256,  64  Am.  Dec.  64;  Coombs  v.  Jordan.  3  "land, 
2S4,  22  Am.  Dec.  236;  Bircher  v.  Parke.,  40  Mo.  120;  Ua^.  v. 
Doane,  n  N.  J.  (Eq.)  84. 


§  33.    How  right  of  removal  lost. 

HEDDERICH  v.  SMITH. 

[103  Ind.  203;  S3  Am.  Rep.  509] 
Supreme  Court 'of  Indiana,  1H85. 

Mitchell,  C.  J.— Elizabeth  D.  Smith,  as  owner  of  certain 
premises  in  the  city  of  Indianapolis,  brought  this  suit  against 
Hedderich,  who  was  in  possession,  to  restrain  him  from  re- 
moving therefrom  a  "clubhouse"  which  had  been  erected 
thereon,  and  other  alleged  fixtures,  which  it  was  claimed  were 
a  part  of  the  freehold. 


,56      hOMK    I'KCl'I.IAU    CI.ASSKS    OK    PKHSONAL  PROPEUTV. 

The  case  was  put  at  issue  and   trie.l  by  the  court,  the   result 
hchvr  a  r.ndinj,'  and  judgment  for  the  plaintiff  below. 
rOmittinp  minor  points.] 

The  plai.aiff  took  title   to   the   premises  from  her  deceased 
husband,  i:i>ene/,er  Sn.ith.     The  place  was  known  as  -\  oik  8 
Garden,"  a.ul  had  upon   it  one  building  which  was  used   as  a 
saloon,  and  another  called  the  -'clubhouse."     The    clul)housc 
^^.as  built  by  one  Ualdus  while  occupyinjj  as  tenant  of  Sm.th 
In    \nril,  I's^o,  Iledderich,  with  the  knowledge  and  consent  of 
Smith,  purchased  the    clubhouse  and  fixtures  of  Baldus,  paymg 
therefore  $7oo-in  cash.     Contemporaneously  with  the  purchase 
from  Haldus  he   took  a  lease  of  the  premises   from  Smith  for  a 
term  of  years.     Whether  by  the  terms  of   this   lease  the  r.ght 
to    remove    the    property    in  dispute    was   reserved    does   not 
appear.     During  the  continuance  of  this  lease   Sm.th  died  and 
his  widow  succeeded  to  his  title. 

At  the  expiration  of  the  term  Iledderich  leased  the  premises 
trom  Mrs.  Smith  for  a  term    of  one   ye.ir,  at  a  stipulated  rent, 
pavable  monthly.     The  reut  reserved  for  the   new   term   w.-is 
different  from  the  old.   The  lease  contained  the  usual  covenants 
for  repair  by  the  tenant  and   for  the  surrender  of  the  premises 
at  the  expiration  of  the   term   without  waste.     There  is  ni  it  no 
reservation  of  a  right  to  remove   any  buildir.g  or   fixtures  an- 
nexed  to  or  situate   upon  the   land.     Some    -epairs   and  alter- 
ations   were  made    to   the  club-room  by  the  cenant   during  his 
term   and  he   asserted  the    right  to  remove  it  and  the  fixtures 
which  he  had   purchased  from  B..ldus.     Whether  the  budding 
wa-.  so    annexed    to    the  freehold  as   to  become  part  of   it,  or 
whether  it  could  be    removed  without  injury  to   the  reversion, 
were  propositions   asserted  on  one  hand   and   denied   on  the 
other,  but   as  the   finding  of  the  court  was  for  the  plaintiff  it 
must  be  assumed  here  that  it  was  so  annexed. 

That  a  tenant  who  for  the  better  enjoyment  of  the  leasehold 
erects  thereon  buildings  may  at  any  time  before  the  right  of 
enjovment  ceases  remove  such  buildings,  if  the  removal  can  be 
accomplished  without  permanent  injury  to  the  freehold,  is  well 
settled.  It  is  equally  well  settled  that  if  he  neglects  to  remove 
them  during  his  rightful  continuance  in  possession,  unless  his 
right  to  do  so  afterward  is  reserved  by  agreement  with  the 
Ituidlord,  he  is  presumed  to  have  abandoned  them  and  his  right 


PEIITV. 

ft,  the  result 
y\\. 

her  deceased 
m  as  "Volk's 
vas  used   as  a 
he    clubhouse 
ant  of  Smith, 
ind  consent  of 
ialdus,  paying 
li  the  purchase 
m  S-nith  for  a 
lease  the  right 
ved,  does   not 
»mith  died  and 

d  the  premises 
stipulated  rent, 
new  term  was 
isual  covenants 
if  the  premises 
^here  is  in  it  no 

or  fixtures  an- 
lairs  and  alter- 
lant  during  his 
and  the  fixtures 
ber  the  building 
le  part  of  it,  or 
>   the  reversion, 

denied    on  the 
•  the  plaintiff  it 

of  the  leasehold 
■ore  the  right  of 
I  removal  can  Ue 
freehold,  is  well 
gleets  to  remove 
ssion,  unless  his 
ement  with  the 
lem  and  his  right 


HEDDEniClI    V,    SMITH. 


»57 


ceases.  Cromic  v.  Hoover,  40  Ind.  49;  Allen  v.  Kennedy,  40 
Iiul.  142;  Hamilton  v.  Huntley,  78  Ind.  521;  s.  c,  41  Am. 
Rep.  S93".  Gritlin  v.  Ransdell,  71  Ind.  440. 

Assuming  that  the  tenant  had  the  right  to  remove  the  build- 
ing and  the  fixtures  during  the  continuance  of  his  first  term,  the 
question  still  remains,  what  was  the  effect  of  his  taking  a  new 
lease  upon  different  terms  from  Mrs.  Smith,  without  reserving 
any  right  of  removjil. 

Without  (luestion  if  there  had  been    nothing  more   than    an 
extension  of  the  old  lease  upon  the  same  terms,   the  respective 
rights   of   the   parties   would  have    remained  the    same.     Tiie 
acceptance  of   a  new  lease  upon  different  terms  was,  however, 
the   creation   of  a  new  tenancy.     It  would  seem  that  when  the 
new  lease   was   made  it  was  a  lease    of   the  whole  estate  as  it 
then   existed,   including  the    clubhouse   now   in   dispute,    with 
whatever   else    was  a  part   of   the    freehold.     This  estate    the 
lessee   covenanted   to  maintain   in  repair  and  at  the  expiration 
of  his  term   surrender  up.     It  results  from   the  terms   of  the 
lease,  that  whatever  constituted  a  part  of  the  freehold,   at  the 
time  the  lease  was  accepted,  must  be  surrendered  at  its  termina- 
tion and  the  lessee  will  not  be  permitted  to  say  that  part  of  the 
premises   leased  was  in  fact   a  trade    fixture   erected    by   him 
under  a    prtivious  lease   and  that  he  has  the  right  against  the 
face  of  his  contract  to  sever  and   remove   it.     To  permit  the 
tenant  to    do  this  would  in  effect  be  to  permit  him  to  deny  the 
title  of  his  landlord  to  part  of  the  demised  premises;  and  if  he 
may  deny  his    title   to   a  part,  why  not   to   the  whole  ?     The 
acceptance  of  the   new  lease  was  an  effectual   surrender  of  the 
old,  together  with   the  estate  and  all  other  rights  which  the  old 
lease   secured  to    him.     Thenceforth    he  was    in  as  of  a   new 
estate,  which  is  to  be  measured   by  the  condition  of    things 
existing  when  it  commenced,  and  by  the  covenants,  conditions, 
and   reservations  contained  in  the   new   lease,  from  which  the 
rights  of  the  parties  must  be  determined  and  regulated. 

Upon  this  subject  the  elementary  writers  are  agreed.  Ac- 
cordingly the  rule  is  stated  by  an  approved  author  thus:  "But 
while  a  tenant  may  renew  a  trade  fixture  at  any  time  during 
his  original  term  or  any  renewal  thereof,  yet  although  he  con- 
tinues in  possession  after  the  expiration  of  his  original  term,  if 
he   holds  under  a   new  lease,  in  which   no  provision  for  the 


1 58      SOME    PECULIAR    CLASSES    OF    PERSONAL  l-ROPERTY. 

removal  of  the  fixtures  is  made,  he  is  treated  as  having  aban- 
doied  his  right  thereto.     Wood,  Landl.  and  Ten.,  section  532. 
So,  also,  in  Taylor,  Landl.  and  Ten.,  section  552,  the  au  hor 
aays:   "If  a  tenant  at  the  close  of  his  term  renews  his  lease,  or 
surrenders   it,  for  the   purpose  of   acquiring  a  fresh  interest  in 
the  premises,  he  should  take  care  to  reserve  his  right  to  remove 
such  fixtures  as  he  had  a   right   to  sever  under  the  old  tenancy. 
For  where  his  continuance  in  possession  is  under  a  new  lease 
or  agreemeu^  his  right  to  remove  fixtures  is  determined,  and 
he  is  in   the  same  situation  as  if  the  landlord,  being  seized  of 
the  land  together  with  the  fixtures,  had   demised  both  to  him." 
The  principles  above  stated   are  sustained   by  the  adjudica- 
tion of  the  courts  m  the  following,  among  other  well  considered 
cases:     Loughran  v.   Ross,  45  N.  Y.  792;  s.  c,  6  Am.  Rep. 
173;  Watriss  v.  First  National  Bank,  etc.,  124  Mass.  571 ;  s.  c, 
26  Am.  Rep.  694;  Jungerman  v.  Bov.;e,  19  Cal.  3:4. 
'       It  results  that  the  judgment  of  the  Marion  superior  court  was 
right,  and  it  is  accordingly  affirmed  with  costs. 

Judgment  afiirmed. 

CoNSULT-Darrah  V.  Baird,  loi  Pa.  St.  265;  Dostal  v.  McCaddon,  ,5 
Iowa  318;  Davis  V.  Buffum,  51  Me.  160;  Beckwith  v.  Boyce,  9  Mo.  560; 
Watrics  V.  First  Nat.  Bk.,  124  Mass.  571,  26  Am.  Rep.  694;  Loughran  v. 
Ross,  45  N.  Y.  792,  e  Am.  Rep.  173;  Marks  v.  Ryan,  63  Cal.  107;  Powel, 
V.  McAshan,  2S  Mo.  70;  Walsh  v.  Sichler,  20  Mo.  (App.)  374- 


i/om 


ERTV. 

wing  aban- 
icction  533. 
the  au  hor 
lis  lease,  or 
-J  interest  in 
it  to  remove 
jld  tenancy, 
a  new  lease 
rmined,  and 
g  seized  of 
ith  to  him." 
le  adjudica- 
1  considered 
5  Am.  Rep. 
s.57i;s.  c, 

or  court  was 

»nt  affirmed. 

VIcCaddon,  35 
ce,  9  Mo.  560; 
;  Loughran  v. 
il.  107;  Powel, 
374- 


CSAPTER  IV. 

THE  MODES  OF  OBTAINING  TITLE  TO 
PERSONAL  PROPERTY. 


I.     BY  ORIGINAL  ACQUISITION. 
(a)     occupancy. 


5  34.    Original  occupancy  in  general. 

HICKEY  V.  HAZARD. 

[3  Mo.  App.  480.] 

Court  of  Appeals  of  M.      nri,  1877. 

Bakewell,  J.— The  plaintiffs  state  in  their  petition  that  they 
are  copartn-rs  and  that  defendants  are  copartners;  that  on  Jan- 
uary 13  1875,  plaintiffs  owned  and  were  in  possession  of  one 
thousand  tons  of  ice,  worth  $2,000;  and  that  defendants  vio- 
lently and  wrongfully  drove  plaintiffs  and  their  servants  off,  and 
unlawfully  took  and  carried  away  said  ice,  and  converted  the 
same  to  their  own  use  to  the  damage  of  plaintiffs  $2,500,  for 
which  they  ask  judgment.  The  answer  of  defendants  denies  all 
the  material  allegations  of  the  petition. 

On  the  trial  the  plaintiffs  introduced  evidence  tending  to  show 
that  in  January,  1S75,  they  had  a  contract  with  Wainright  &  Com- 
pany, of  St.  Louis,  to  deliver  thera  ice  at  $1.75  per  ton  ;  thatfor 
the  purpose  of  fulfilling  that  contract,  plaintiffs,  during  a  hard 
frost,  selected  a  spot  on  the  Mississippi  river  opposite  the  foot 
of  Chouteau  avenue,  in  St.  Louis,  and  on  the  eastern  side  of 
the  stream,  the  ice  being  at  that  time  gorged  in  the  river,  which 
was  favorable  to  the  making  of  good  ice,  the  water  oeing  clear, 
and  owing  to  the  eddy  and  slack  water  there,  the  character  of 
the  ice  forming  being  of  a  good  quality;  that  the  mass  of  the 
gorged  ice  in  the  river  was  utterly  worthless,  but  that  there 

(159) 


li.«? 


J 


,6o      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

were,  here  and  there  along   the  I!U::ois  bank,  patches   of   ice 
which,  with  proper   attention,  could  be  made   ^fj^^^^f;^^  f 
value;  that  so  soon  as  the  ice  would  bear,  plamt.ffs  staked  ou 
their  claim,  marking  it  with  stakes,  and  plowing  all   around  it 
with  a  snowplow  a  line  about  three  hundred   and  s.xty   feet  m 
extent,  thus  inclosing  a  triangular  patch  of  clear  ice,  the  base  of 
the  triangle  being  about  sixty  feet;   that  plamt.ffs   engaged  a 
flatbftat   on  the  spot  to  remove  this  ice  and   employed  a  body 
of  men  to  watch  it  day  and  night,  who  kept  it  constantly  swept 
and  free  from  skaters;  that  otherwise  the  ice  would  have  been 
spoiled  for  mercantile  purposes  from  sand  and  drift-snow  blow- 
ing  upon  it;  that  they  retained  by  themselves  and  their  bards, 
constant,  actual  possession  of  this  piece  of  ice  for  about  two 
weeks,   and  up  to  the  date  of   the  wrongs  complained  of,  and 
expended  in  this  work  about  $239'  ^nd  thus  gave  to  this  piece 
of  ice  considerable  commercial  value;  that  the  ice  at  the  date 
of  the  trespass  was  about  a  foot  thick  and  worth  about  $i  per 
ton  as  it  lay;  that  plaintiffs  then  had  it  surveyed  and  measured, 
and  found  it  contained  about  six  hundred  tons;  that  the  claim 
was  recognized  as  plaintiffs'  by  the  neighboring  bargemen  and 
persons  on  the  nearest  bank,  and   that  plaintiffs  had   obtained 
the  written  consent  of  a  man  residing  on  the  bank  opposite  this 
ice  to  cut  ice  in  front  of  his  premises;  that  about  January   13, 
and  as  soon  as  the  ice  was  ready  to   cut,  one  of  the  defendants 
armed  with  a  pistol  and  accompanied  by  about  fifty  men  in  his 
employ  armed  with  clubs  and  ice  picks,  by  threats  and  violence 
drove  plaintiffs  and  their  hands   from   the   ice  in  spite  of  the 
remonstrances  and  resistance  of  plaintiffs   and  their  men-one 
of   defendants  declaring  that  he  would  have  the   ice   if  it  cost 
$1  000  or  a  life;   that   a  shot  vv  .s  fired;  that    plaintitfs    were 
overpowered  by  a  force  very  greatly  superior  to  their  own  and 
compelled  to  retire;  that  one  of  plaintiffs  at  once  proceeded  to 
Belleville  to  institute  legal  proceedings  to   re-,tra.n   defendants 
from  cutting  this  ice,  but  did  not  succeed  hi  getting  proper  serv- 
ice  or   service   in  time:  and  that  defendants,  with  their  hands, 
proceeded  at  once  to  cut  up  this   area  of  ice  which   had  been 
occupied  by  plaintiffs  and  carried  the  same  away  and  stored  it. 
These  facts  were  testified  to  on  behalf  of  plaintiffs  by  a  large 
number  of  witnesses. 


)PERTY. 


HICKEY    V.    HAZARD. 


i6i 


ches   of   ice 
considerable 
;  staked  out 
11   around  it 
iixty   feet  in 
!,  the  base  of 
5   engaged  a 
ayed  a  body 
stantly  swept 
d  have  been 
:t-snow  blow- 
their  bands, 
3r  about  two 
ained  of,  and 
to  this  piece 
;  at  the  date 
about  $1  per 
md  measured, 
hat  the  claim 
jargemen  and 
had   obtained 
:  opposite  this 
t  January   13, 
:he  defendants 
fty  men  in  his 
ts  and  violence 
n  spite  of  the 
heir  men — one 
!   ice   if  it  cost 
plaintiffs    were 
their  own  and 
;e  proceeded  to 
am   defendants 
ing  proper  serv- 
ith  their  hands, 
k-hich   had  been 
y  and  stored  it. 
ntiffs  by  a  large 


At  the  close  of  plaintiffs'  case,  defendants  asked  an  instruc- 
tion in  the  nature  of  a  demurrer  on  the  evidence,  whicii  wa? 
given  by  the  court,  and  plaintiffs  took  a  nonsuit.  The  coui  c 
refused  to  set  the  nonsuit  aside  and  plaintiffs  appealed. 

We  do  not  know  why  plaintiffs  were  not  allowed  to  go  to  a 
jury  with  their  case.  Their  testimony  clearly  showed  the  com- 
mission of  a  highhanded  outrage  in  violation  of  plaintiffs' 
rights.  If  there  were  no  remedy  for  such  a  wrong  as  this,  our 
boasted  civilization  would  be  a  farce  and  men  would  be  left 
to  contend  like  wild  beasts  for  the  rights  of  person  and  prop- 
erty, and  each  weaker  individual  would  be  completely  at  the 
mercy  of  his  stiperi"'  savage.  We  think  that  plaintiffs  had  an 
appropriate  iciiedy,  and  should  have  recovered  on  their  evi- 
dence. 

Instances  yet  remain  where,  fiom  the  nature  of  the  thing,  it 
is  necessary  to  resort  to  the  n j'Mral  i.itle  of  occupancy,  as  firm  a 
title  as  any  other  when  it  is  the  appropriate  one.  A  man  may 
have  by  occupancy  a  qualified  property  in  goods  of  the  most 
figurative  character — in  the  elements  themselves  of  fire,  air, 
light,  and  water;  an  1  v/ben  disturbed  in  his  actual  possession 
and  use  of  them,  nia^  n  >"r:tain  his  action  and  recover  damages. 
Waifs  and  treasure  trove  belong  to  the  first  one  who  takes  pos- 
session. Even  where  there  is  a  common  right,  as  to  fish  in  the 
sea  and  public  waters,  one  disturbed  in  the  previous,  actual 
occupation  and  exercise  of  the  right  will  be  protected  by  the 
law;  for  here  the  doctrine  of  prime  occupancy  will  literally 
apply,  and  when  one  is  in  the  exercise  of  a  common  right, 
another  may  not  interfere  to  expel  and  disturb  him. 

All  rivers  and  navigable  streams  belong  to  the  public  and  the 
right  to  fish  in  them  is  common  to  all.  Every  person  has  a 
right  to  take  fish  found  on  the  sea  shore,  and  to  dig  for  shell 
fish  below  high  water  mark.  Tl\e  right  to  take  sea  weed  grow- 
ing or  accumulating  on  the  bed  of  a  navigable  river  is  also  in 
the  public.  9  Conn.,  38;  5  Day,  32 ;  4  Burr,  2162.  These 
acknowledged  principles  of  the  common  law  applied  to  the 
ptculiar  circumstances  of  this  case  make  it  perfectly  clear  that 
the  plaintiffs  here  had  rights  which  the  law  will  recognize  and 
protect. 

Whilst  the  jurisdiction  of  the  state  of  Missouri  is  declared 
by  the    constitution   of    1S65    to   be    concurrent   with    that   of 


I62       MODES  OF  OBTAINIXG  TITLE  TO  PEUSONAI.  PROPERTY. 

Illinois  over  the  Mississippi  river  so  far  as  that  stream  forms  a 
con^mon  boundary  between  the  states,  that  r:ver  .      commo 
highway  and  free  to  the  citizens  of  the  state  and  of  each  state 
of  the  Union  and  of  the  United  States. 

The  soil  under  the  Mississippi  river  does  not  belong  to  the 
riparian  proprietor.     By  virtue  of  its  size  and  character,  and  of 
pub       acts,  laws    and  treaties,  the  Mississippi  river  ,s  a  naw- 
Tabll  stream  ..n.l  the  soil  under  it,  ./ //«.«  -^^'^Jt^";: 
the  states  respec.    ely  between  which  it  runs.      15  How-  4-6, 
a    owa    X.     The  common  law  doctrine,  or  what  :s  declared  to 
L   the  common  law    doctrine  in  Blackstone    and    some     ate 
.vritevs  on  the  common  law,  that  a  river  ,s  n-'^;^  «^  ^  ^^ 
far  as  the  tide  flows  doe.  not  apply  to  large  navigable   sf.eams 
in  the  United  States.      14  Serg.  &  R.  71. 

Whilst  we  assert  these  recognized  principles  we  do  not  do  so 
because  in  this  case  any  question  arises,  or  can  «--'   °      ^^^ 
oa.s  to  realty.     Cutting  ice  on  a  navigable  stream  in    such 
:;:;   :  Lt  to  interfere  with  the  use  of  its  waters  for  commerce 
o    navi.mtion  or  any  use  to  which  the  stream  may  be  put  by  tic 
general"  public,    is   not  a  trespass,  though   the    land   beneath 
belongs  to  the    tate  and  the  ice  be  cut  without  a  license  from 
the  pr'op^tor  of  the  soil.     It  is  not  to  be  likened   to  cutting 
down  trees  on  the  public  domain,  or  cutting  ice  on  a  pond  on 
public  or  private  p^perty.     The  surface  of  the  "--  f-   <> 
all .  and  in  the  water  itself,  whether  in  its  running  state  or  con- 
eealed   there  can  be  no  property  except  that  aenved  from  pos- 
festn      The-  ice    is   not   permanently    attached   to   the   soil 
hough   the   edges   of   the  mass  may   rest  upon  it.     It  in  no 
X  depends  directly  upoa  the  soil  even  for  support,  though 
Tendered  temporarily  motionless  by  its  mass  or  other  circum- 
ances      If  trees  in  a  nursery,  though  drawing  nutrition  from 
he  so   ,  are  not  a  part  of  the  realty-and,  as  between  lessor 
Ind  lessee    they  are  not-much  less  can  ice  on  the  bottom  of  a 
::  iSle'sfreL,  though  temporarily  fixed   in  position  by  ^ 
"orge  or  otherwise,  be  considered  a  part  of  the  soil.     It  is  no 
Tore  realty  than  is  a  log  of  driftwood  jammed   against  the 

'%V^t^.1^rll^n.,or^^^^^  of  the  ice  and  give  it  a  com- 
JcTal  value,  derived  almost  wholly  from  the  labor  bestowed 
"pont,  is  a  right  which  may  be   assimilated  to  the  right  of 


lOPERTY. 

ream  forms  a 

io  a  common 

of  each  state 

belong  to  the 
iractcr,  and  of 
^'cr  is  a  navi- 
',a.e,  belongs  to 
15  How.  426; 
is  declared  to 
id  some  later 
ngable  only  as 
liable   streams 

ve  do  not  do  so 
arise,   of  trcs- 
eam  in    such  a 
3  for  commerce 
y  be  put  by  the 
!    land   beneath 
:  a  license  from 
sned   to  cutting 
;e  on  a  pond  on 
B  river  is  free  to 
ing  state  or  con- 
jrived  from  pos- 
ted  to   the   soil 
on  it.     It  in  no 
support,  though 
jr  other  circum- 
g  nutrition  from 
s  between  lessor 
1  the  bottom  of  a 
in  position  by  a 
le  soil.     It  is  no 
imed   against  the 

nd  give  it  a  com- 
le  labor  bestowed 
d  to  the  right  of 


HICKEV    V.    HAZARD. 


16,^ 


reclaiming  animals  wild   by    nature.     These    can  only  be  re- 
claimed  by  actual    possession.     7   Johns.    16.     The    right   to 
appropriate  such  property  does  not  depend  entirely  upon  the 
place  in  which   it  is   found;  as   to    all    inanimate   o))jects    an 
absolute  property    in    possession   may    be    acquired    in    them. 
And,  as  to  animals  ferae  naturae  a  qualified  property  may  be 
acquired  by  taming  them.     If  defendants  had   actual   informa- 
tion of  the  appropriation  and  ownership  of  this  defined  strip  of 
clear  ice,  they  can  set  up  no  greater  claim  to  it  because   found 
on  its  native  element,  than  they  could  to  tame  pigeons  in  the 
air,  or  to  a  domesticatud  deer  on  a  mountain.     And  this  would 
be  true  had  plaintiffs  not  been  actually  on  the  ice  by   them- 
selves or  their  servants,  at  the  time  of  thie   trespass,  since  they 
had  staked  out  their  claim  and  plowed  a  deep  cut  all  around  it. 
If  the  action  of  plaintiffs  in    staking    off   this   ice    interfered    in 
any  degree  with  the  common  right  of   using   the    stream,  their 
possession   must  be  held   undoubtedly  to  be  subservient  to  the 
public   use.     But  that  is  not  pretended  to  have   been  the  case; 
and  defendants  did   not   interfere  to  abate  an  alleged  nuisance, 
but  to  appropriate    another  man's  goods.     The   staking  out  of 
this  ice  interfered  with  no  purpose  of  business  or  pleasure.    To 
use  the  language  of  Judge  Nelson  in  a  somewhat  similar  case, 
Fleet    V.     Hegeman,     14   Wend.   46,    "the    case    presents    a 
deliberate  and   wanton  violation  of  property  acquired  by  the 
industry  and  care  of  another  under  pretext  of  exercising  a  right 
in  common,  wliich  defendants   must  have    known  to  be  fruit- 
less."    (DefendarHs   appropriated  this  ice,  apparently,  o^  the 
theory  that  it  was  common  property  and  free  to  all  and  to  be 
appropriated  specially  by  none.)     "We   certainly  should   have 
regretted  if  the  law  had  given  countenance   to  such  depreda- 
tions, and  we  are  rejoiced  to  be  able  to  declare  them  a  gross 
violation  of  law— as  they  are  of  the  first  principles  of  justice." 
Plaintiffs  had  sufficient  property  in  this  ice  to  enable  them  to 
maintain  trespass      Possession  is  sufficient  to  enable  the  pos- 
sessor to  maintain  trespass.     Pr   ^'^  of  actual  possession  by  the 
plaintiff  at  the  time  of  the  trespass  in  all  cases  suffices  to  main- 
tain the  action  against  a  mere  wrongdoer,  a  naked  trespasser, 
who  shows  no  title. 

The  judgment    of  the  circuit  court   is  reversed  and    the 
cause  remanded.     The  other  judges  concur. 
See  note  to  Iliggins  v.  Kusterer,  ante,  p.  92. 


I64       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

§  35.    Same-Capturing  wild  animals. 
PIERSON  V.  POST. 

[3  Caines,  175,  2  Am.  Dec.  264.] 

Supreme  Court  of  Nctv  Tork,  1805. 

Post  was  engaged  in  hunting,  chnsing,  and  pursuing  a  fox 
wi^his  dogs,  when  Pierson,  knowing  this  to  be  so  and  m  s.ght 
Tf  Po';;  kilfed  and  carried  it  off.  Post  sued  for  damages  and 
had  a  verdict. 

Tompkins,  J—This  cause  comes  before  us  on  a  return  to  a 
certiorari  directed  to  one  of  the  justices  of  Queens  county 

The  question  submitted  by  the  counsel  m  th.s  cause  for  our 
determination  is,  whether  Lodowick  Post,  by  the  pursuit  with 
hi  hounds  in  th;  manner  alleged  in  his  declarat.on.  acquired 
siTch  a  right  to,  or  property  in,  the  fox,  as  will  sustain  an  action 
against  Pierson  for  killing  and  taking  him  away. 

^The  cause  was  argued  with  much  ability  by  the  counsel  on 
both  sides,  and  presents  for  our  decision  a  novel  and  nice  ques- 
tion  It  is  admitted  that  a  fox  is  an  animal/.r^.  naturae,  and 
that'property  in  such  animals  is  acquired  by  occupancy  only 
These  admissions  narrow  the  discussion  to  th-  simple  question 
of  what  acts  amount  to  occupancy,  applied  to  acquiring  right 

to  wild  animals.  . 

If  we  have  recourse  to  the  ancient  writers  upon  general  prin- 
ciples of  law,  the  judgment  below  is  obviously  erroneous, 
Justinian's  Institutes,  lib.  2,  tit.  i,  s.  13,  and  Fleta,  lib.  3,  c^. 
p  17.,  adopt  the  principle  that  pursuit  alone  vests  no  propeity 
oi  right  in  the  huntsman;  and  that  even  pursuit,  accompanied 
with  wounding,  is  equally  ineffectual  for  that  purpose,  unless  the 
animal  be  actually  taken.     The  same  principle  is  recognized  by 

Bracton,  lib.  2,  c.   1,  p.  §•  , 

Puffendorf,  lib.  4,  c  6,  s.  2  and  10,  defines  occupancy  of 
beasts  fera.cnaturaeX.o  be  the  actual,  corporal  possession  of  them, 
and  Bynkershoek  is  cited  as  coinciding  in  this  definition  It  is 
indeed  with  hesitation  that  Puffendorf  affirms  that  a  wild  beasr 
mort..lly  wounded,  or  greatly  maimed,  can  not  be  fairly  .nter- 
cepted  by  .nnother  whilst  the  pursuit  of   the  person  inflicting 


PROPERTY. 


pursuing  a  fox 
so,  and  in  sight 
r  damages  and 


)n  a  return  to  a 
ens  county. 
s  cause  for  our 
the  pursuit  with 
iration,  acquired 
sustain  an  action 

y  the  counsel  on 
el  and  nice  ques- 
rac  naturae^  and 
occupancy  only, 
simple  question 
:o  acquiring  right 

pon  general  prin- 
iously  erroneous, 
Fleta,  lib.  3,  c.  2. 
vests  no  property 
5uit,  accompanied 
jurpose,  unless  the 
le  is  recognized  by 

ines  occupancy  of 
possession  of  them, 
is  definition.  It  is 
5  that  a  wild  beasf 
not  be  fairly  inter- 
e  person  inflicting 


PIERSOX    V.    POST. 


16: 


the  wound  continues.  The  foregoing  authorities  are  decisive 
to  show  that  mere  pursuit  gave  Post  no  legal  right  to  the  fox, 
but  that  he  became  the  property  of  Pierson,  who  intercepted 
and  killed  him. 

It  therefore  only  remains  to  inquire  whether  there  are  any 
contrary  principles,  or  authorities,  to  be  found  in  other  books, 
which  ought  to  induce  a  different  decision.  Most  of  the  cases 
which  have  occurred  in  England,  relating  to  property  in 
wild  animals,  have  either  been  discussed  and  decided  upon  the 
principles  of  their  positive  statute  regulations,  or  have  arisen 
between  the  huntsman  and  the  owner  of  the  land  upon  which 
beasts  y^^ac  naturae  have  been  apprehended  ;  the  former  claim- 
ing them  by  title  of  occupancy,  and  the  latter  ratione  soli.  Little 
satisfactory  aid  can,  therefore,  be  derived  from  the  English 
reporters. 

Barbeyrac,  in  his  notes  on  Puffendorf ,  does  not  accede  to  the 
definition  of  occupancy  by  the  latter,  but,   on   the    contrary, 
aflirms  that  actuat  bodily  seizure  is  not,  in  all  cases,  necessary 
to  constitute  possession  of  wild  animals.  He  does  not,  however, 
describe  the  acts  which,  according  to  his  ideas,   will  amount  to 
an  appropriation  of  such  animals  to  private  use,  so  as  to  exclude 
the  claims  of   all  other  persons,  by  title  of  occupancy,  to  the 
same  animals ;  and  he  is  far  from   averring  that  pursuit  alone 
is  sufficient  for  that  purpose.     To  a  certain  extent,  and  as  far 
as  Barbeyrac  appears  to  me  to  go,  his  objections  to  Puffendorf  s 
definition  of  occupancy  are  reasonable  and  correct.     That  is  to 
say,  that  actual  bodily  seizure  is  not  indispensable  to  acquire 
right  to,  0/   possession   of,  wild  beasts ;  but  that  on  the  con- 
trary, the  m  irtal  v/ounding  of  such  beasts,   by  one  not  aban- 
doning his  pursuit,  may,  with  the  utmost  propriety,  be  deemed 
possession  of  him;   since,   thereby,  the  pursuer    manifests  an 
unequivocal  intention  of   appropriating  the  animal  to  his  indi- 
vidual use,  has  deprived  him  of  fiis  natural  liberty,  and  brought 
him  within  his  certain  control.       So,    also,   encompassing  and 
securing  such  animals  with  nets   and  toils,  or  otherwise  inter- 
cepting them    in  such  a  manner  as  to  deprive  them  of  their 
natural  liberty,    and  render  escape  impossible,  may  justly  be 
deemed  to  give  possession  of  them  to  those  persons  who,  by 
their  industry  and  labor,  have  used  such  means  of  apprehending 
them.     Barbeyrac  seems'  to  have  adopted,  and  had  in  view  in 


l66      MOPi.o  OK  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

his  notes,  the  more  accurate  opinion  of   Grotius,  with  respect  to 
occupancy.     That  celebrated  author,  lib.  2,  c.  8,  s.  3,  p.  309, 
speaking  of  occupancy,  proceeds  thus:   ^^Rcquirihir  autemcor- 
f  oralis  quacdam  posscssio  ad  dominium  adif>isccndum ;  atqtte 
idea,  vulnerassc  non  sufficUr  But  in   the  following  section  he 
explains  and  qualifies  this  definition  of  occupancy  :      ''Sed  fos- 
scssio  ilia  fotcst  7ion  solis  manibus,  scd  instrumcntis,  ut  dcci- 
fulis,  retibus,  laqucis  dtim  duo  adsint:  frimum  ut  ipsa  instru- 
mciita  sint  in  nostra  potcstate,  dcinde  ut  fera,  ita  inclusa  sit, 
ut  exire  indc  nequeat."       This  qualification  embraces  the  full 
extent  of  Barbeyrac's  objection  to  Puffendorf's  definition,  and 
allows  as  great  a  latitude  to   acquiring  property  by   occupancy 
as    can    reasonably   be    inferred    from    the   words    or    ideas 
expressed  by  Barbeyrac  in  his  notes.     The  case  now  under  con- 
sideration is  one  of  mere  pursuit,  and  presents  no  circumstances 
or  acts  which  can  bring  it  within  the  definition  of  occupancy 
by  Puffendorf ,  or  Grotius,  or  the  ideas  of  Barbeyrac  upon   that 

subject. 

The  case  cited  from  11  Mod.  74-13O'  I  t^^'^^^  clearly  distm- 
guishable  from  the  present;  inasmuch  as  there  the  action  was 
for  maliciously  hindering  and  disturbing  the  plaintiff  in  the 
exercise  and  enjoyment  of  a  private  franchise  ;  and  in  the  report 
of  the  same  case,  3  Salk.  y.  Holt,  Ch.  J.,  states  that  the  ducks 
were  in  the  plaintiff's  decoy  pond,  and  so  in  his  possession,  from 
which  it  is  obvious  the  court  laid  much  stress  in  their  opinion 
upon  the  plaintiff's  possession  of  the  ducks  ratione  soli. 

We  are  the  more  readily  inclined  to  confine  possession  or  occu- 
pancy of  beasts /emc  naturae,  within  the  limits  prescribed  by  the 
learned  authors  above  cited,  for  the  sake  of  certainty,  and  pre- 
serving peace  and  order  in  society.  If  the  first  seeing,  starting, 
or  pursuing  such  animals,  without  having  so  wounded,  circum- 
vented, or  ensnared  them,  so  as  to  deprive  them  of  their  natural 
liberty,  and  subject  them  to  the  control  of  their  pursuer,  should 
afford  the  basis  of  actions  against  others  for  intercepting  and 
killing  them,  it  would  prove  a  fertile  source  of  quarrels  and 

litigation. 

However  uncourteous  or  unkind  the  conduct  of  Pierson 
toward  Post,  in  this  instance,  may  have  been,  yet  this  act  was 
productive  of  no  injury  or  damage  for  which  a  legal  remedy  caa 


'ROPEUTY. 

,vith  respect  to 
,  s.  3,  p.  309, 
tur  autem  cor- 
endutn;  atqtic 
ing  section  he 
yr:      '■'•Scdpos- 
entis,  ut  dcci- 
ut  ipsa  instru- 
ita  inclusa  sit, 
braces  the  full 
definition,  and 
by   occupancy 
ords    or    ideas 
now  under  con- 
)  circumstances 
11  of  occupancy 
yrac  upon   that 

clearly  distin- 
the  action  was 
plaintiff  in  the 
ind  in  the  report 

that  the   ducks 
possession,  from 
in  their  opinion 
one  soli. 
ssession  or  occu- 
jrescribed  by  the 
rtainty,  and  pre- 
seeing,  starting, 
ounded,  circum- 
n  of  their  natural 
pursuer,   should 
intercepting  and 
of  quarrels  and 

duct  of  Pierson 
,  yet  this  act  was 
legal  remedy  caa 


MANNING    V.    MITCHEKSON. 


167 


be  applied.     We  are  of  the  opinion  the  judgment  below  was 

erroneous,  and  ought  to  be  reversed. 

Judgment  of  reversal. 

CoNSULT-Com.  V.  Chace,  9  Pick.  15;  Goff  v.  Kilts,  15  Wend.  550; 
Gilletv.  Mason,  7  Tohns.  16;  Wallis  v.  Mease,  3  Kinn.  546;  Amory  v. 
Fb-n,  ID  Johns.  lOJ,  6,  Am.  Dec.  316;  Kleet  v.  liegeman,  18  Wend.  42; 
Buster  v.  NewkJrk,  20  Johns.  75;  Ferguson  v.  Miller,  i  Cow.  244,  13 
Am.  Dec.  317;  Ghen  v.  Rich,  S  Fed.  Rep.  159. 


The 


§  36.    Same— Wild  animal  regaining  liberty. 
MANNING  V.  MITCHERSON. 

[69  Ga.  447 ;  47  Am.  Rep.  764.] 
Supreme  Court  of  Georgia,  1882. 

This  was  an  action  for  the  possession  of  a  canary  bird, 
plaintiff  had  judgment. 

Crawford,  J.— The  questions  submitted  for  our  adjudication 
by  this  record,  and  insisted  on  by  counsel  for  the  plaintiff  in 
error,  are  substantially : 

(i)  Whether  such  a  property  right  can  exist  in  a  canary 
bird  as  to  make  it  the  subject-matter  of  a  possessory  warrant. 

(2)  Whether,  even  if  this  be  so,  such  warrant  will  lie  against 
the  husband  to  recover  property   in  the  possession,  custody,  or 

control  of  the  wife. 

(3)  Whether  the  notary  public,  and  ex-officio  justice  of  the 
peace,  did  not  commit  error  in  his  decision  in  this  case,  in  giving 
judgment  in  favor  of  the  plaintiff  in  the  warrant,  against  the 
weight  of  evidence  submitted  on  the  trial. 

I.  The  law  of  Georgia  is,  that  to  have  property  in  animals, 
birds,  and  fishes  which  are  wild  by  nature,  one  must  have  them 
within  his  actual  possession,  custody,  or  control,  and  this  he  may 
do  by  taming,  domesticating,  or  confining  them. 

The  answer  of  the  ex-officio  justice  of  the  peace  in  this  case, 
the  same  being  a  certiorari  and  no  traverse  thereof,  must  be 
taken  as  true,  and  it  says,  that  according  to  the  testimony  of 
all  the  witnesses  the  bird  in  controversy  was  shown  to  have 


l6S       MODES  OF  OnTAlNING   TITLE  TO  PERSONAL  PROPEUTV. 


;,  •- 


been  tamed.  It  was  also  testified  that  it  had  been  in  the  pos- 
session of  the  plaintiff  in  the  warrant  about  two  years;  that  it 
knew  its  name,  and  when  called  by  its  owner  would  answer  the 
call :  that  it  had  left  its  cage  on  one  occasion,  and,  after  having 
been  gone  a  day  or  two,  returned ;  that  on  the  twenty-seventh 
day  of  December,  before  the  preceding  New  Year's  day,  it  was 
missing  from  its  cage,  and  on  the  latter  day  it  was  received  and 
taken  possession  of  by  the  defendant,  who  had  kept  it  in  con- 
finement ever  since. 

Under  this  evidence,  there  does  not  seem  to  be  any  question 
of  surticient  possession  and  dominion  over  this  bird  to  create  a 
property  right  in  the  plaintiff.  To  say  that  if  one  has  a  canary 
bird,  mocking-bird,  parrot,  or  any  other  bird  so  kept,  and  it 
should  accidentally  escape  from  its  cage  to  the  street,  or  to  a 
neighboring  house,  that  the  first  person  who  caught  it  would  be 
its  owner,  is  wholly  at  variance  with  our  views  of  right  and 
justice.  To  hold  that  the  traveling  organist  with  his  attendant 
monkey,  if  it  should  slip  its  collar,  and  go  at  will  out  of  his 
immediate  possession  and  control,  and  be  captured  by  another 
person,  that  he  would  be  the  true  owner  and  the  organist  lose 
all  claim  to  it,  is  hardly  to  be  expected;  or  that  the  wild  animals 
of  a  menagerie,  should  they  escape  from  their  owner's  immediate 
possession,  would  belong  to  the  first  person  who  should  subject 
them  to  his  dominion. 

3.  Upon  the  second  question  presented  for  our  consideration, 
we  hold  that  a  possessory  warrant  will  lie  against  any  one  who 
receives  or  takes  possession  of  a  personal  chattel  under  a  pre- 
tended claim,  and  without  lawful  warrant  or  authority.  To 
apply  this  principle  to  the  facts  of  this  case,  as  they  are  set  out 
in  the  answer  of  the  justice,  we  must  say  that,  though  the  wife 
may  possibly  have  had  the  personal  care  of  the  bird  in  question, 
yet  it  is  clear  that  it  was  in  the  power,  custody,  and  control  of 
the  husband,  and  was  undoubtedly  surrendered  to  the  officer  by 
his  authority  and  direction.  So  that,  really,  no  question  can  be 
legally  made  on  the  point  here  raised,  as  the  possession  of  the 
wife  was  but  the  possession  of  the  husband. 

3.  That  the  justice  gave  judgment  in  favor  of  the  plaintiff 
in  the  warrant  against  the  weight  of  evidence,  we  do  not 
admit.  The  testimony  for  the  plaintiff  was  positive  and  convinc- 
ing, and  the  testimony  of  Robt.   Gignilliat,  Esq.,  given  in  his 


nOPEUTi'. 

n  in  the  pos- 
years ;  that  it 
lid  answer  the 
I,  after  having 
wenty-seventh 
r's  day,  it  was 
8  received  and 
cept  it  in  con- 

e  any  question 
ird  to  create  a 
e  has  a  canary 
3  kept,  and   it 

street,  or  to  a 
;ht  it  would  be 
s  of  right  and 
h  his  attendant 
/ill  out  of  his 
red  by  another 
J  organist  lose 
le  wild  animals 
er's  immediate 

should  subject 

•  consideration, 
it  any  one  who 
el  under  a  pre- 
authority.  To 
they  are  set  out 
lough  the  wife 
ird  in  question, 
and  control  of 
to  the  officer  by 
question  can  be 
jssession  of  the 

of  the  plaintiff 
ce,  we  do  not 
ive  and  convinc- 
q.,  given  in  bis 


BROWN    V.    UNITED    STATES. 


169 


place  as  an  attorney,  without  being  sworn,  shows  that  the  refusal 

to  return  the  bird,  as  stated  to  him  by   the   defendant  himself, 

was  owing  more  to    the    otfcnsive    manner    in    which    it    was 

demanded,    tlian  to  any   claim    of   right  which   he   set  up   by 

ownership  or  possession.     This  statement  was   not  denied  or 

controverted  by  the  defendant,  though  he  was  a  witness  in  the 

case.     The  weight  of  the  testimony  appears  to  be  clearly  with 

the  plaintiff.     Under  the  law  and   the  testimony  there  was  no 

error  in  dismissing  the  certiorari. 

Judgment  affirmed. 

Consult— Com.  v.  Chace,  9  Pick.  15;  Goff  v.  Kilts,  15    Wend.  551; 
Amory  V.  F\yn,  10  Johns.  102,  6  Am.  Dec.  316. 


§  37.    Goods  captured  in  war. 

BROWN  V.  UNITED  STATES. 

[8  Crancii,  no;  Snow's  Cas.  Int.  L.  263.] 

Supreme  Court  of  the  United  States,  1814. 

The  Emtdous,  owned  by  John  Delano  and  others,  citizens  of 
the  United  States,  was  chartered  to  a  company  carrying  on  trade 
in  Great  Britain,  one  of  whom  was  an  American  citizen,  for  the 
purpose    of   carrying   a   cargo   from    Savannah   to    Plymouth 
(England).     After  the  cargo  was  put  on  board,  the  vessel  was 
stopped  in  port  by  the  embargo  of  the  fourth  of  April,  181 2. 
On  the  twenty-fifth  of  the  same  month  it  was  agreed   between 
the  master  of  the  ship  and  the  agent  of  the   shippers,  that  she 
should  proceed  with  her  cargo  to  New  Bedford,  where  her  owners 
resided.     While  the  ship  was  lying  at  New  Bedford  war  was 
declared  (eighteenth  of  June)  ;and  in  October  or  November  the 
cargo,  consisting  of  pine  timber  being  put  in  a  salt  water  creek— 
not  navigable,  and  on  the  seventh  of  November  was  sold  by  the 
agent   of   the  owners  and   American  citizen,  to  the    claimant 
Armitz  Brown,  who  was   also  an   American  citizen.     On  the 
nineteenth  of  April,  1S13,  a  libel  was  filed  by  the  attorney  for 
the  United  States  in  the  district  court  of  Massachusetts  against 
the  said  cargo  as  well  on  behalf  of  the  United  States  as  for  and 


X-JO      MODES  OF  OBTAINMSO   TITI.K  TO  I'KUSONAI.    PKOl'KKTV. 

5n  behalf  of  John  Dch.no  and  for  all  others  concernc-cl.  The 
attorney  had  no  histructi-.ns  from  his  superior,  the  prrsuUnt  of 
the  r.iited  States,  but  acted  at  the  instance  of  Delano,  the  owner 
of  the  liuiulous.  ^       . 

The  .listrict  court  dismissed  the  l.bel.  The  circn.t  court 
(Stoky,J.).  •cvorscd  this  sentence  and  condemned  the  pme 
timber  in  enemy's  property  forfeited  to  the  United  States.  Ihe 
claimant  appealed  to  the  supreme  court. 

Maushall,  C.  J.— The  material  question  made  at  bar   is 
this-     Can  the   pine  timber,  even  admitting  the  property  not 
to  be  changed  by  the  sale  in  November,  be  condemned  as  pnze 
of   war?      The    cargo   of  the   Emulous   having   been    legally 
acquired  and  put  on  board,  the  vessel  having  been  defamed  by 
an  embargo  not  intended  to  act  on  foreign  property,  the  ves- 
sel    having  sailed  before  the    war,  from    Savannah,    under    a 
stipulation  to   reland   the  cargo  in    some   port  of    the  United 
States,   the  relanding  having  been    made  with   respect  to  the 
residue  of  the  cargo  and  the  pine  timber  having  been  floated 
into   shallow   water  where    it   was  secured  and  m  the  custody 
of  the  owner  of  the  ship,  an  American  citizen,  the  court  can 
not  perceive  any  solid  distinction  so  far  as  respects  confiscation 
between  this  property  and  other  British  property  found  on  land 
at  the  commencement  of  hostilities.     It  will,  therefore,  be  con- 
sidered  as  a  question  relating  to  such  property  generally  and  to 
be  governed  by  the  same  rule. 

Respecting  the   power  of   government,  no  doubt  is  enter- 
tained.     That  war  gives  to  the  sovereign  full  right  to  take  tne 
persons    and  confiscate  the    property   of    the   enemy   wherever 
found  is  conceded.     The  mitigations  of  this  rigid  rule  which 
the  humane  and    wise  policy  of  modern   times   has    introduced 
into  practice  will  more  or  less  affect  the    exercise  of  this   right, 
but  can  not  impair  the  right  itself.    That  remains  undiminished 
and,  when  the  sovereign  authority  shall  choose  to  bring  it  into 
opf      ion,  the  judicial  department  must  give  effect  to  its  wdl. 
But  until  that  will  shall  be  expressed,  no  power  of  condemna- 
tion can  exist  in  the  court. 

The  questions  to  be  decided  by  the  court  are: 
I.     May  enemy's  property  found  on  land  at  the  commence- 
ment of  hostilities  be  seized  and  condemned   as  «     <;cessary 
consequence  of  the  declaration  of  war? 


^^ 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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I.I 


1^  IP'M 


2.2 


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US  IIM 


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Sciences 

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23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  873-4503 


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BROWN    V.    UNITED    STATES. 


i7t 


2.  Is  there  any  legislative  act  which  authorizes  such  seizure 
and  condemnation? 

Since  in  this  country  from  the  structure  of  our  government 
proceedings  to  condemn  the  property  of  an  enemy  found 
within  our  territory  at  the  declaration  of  war  can  be  sustained 
only  upon  the  law  principle  that  they  are  instituted  in  execu- 
tion of  some  existing  law,  we  are  led  to  ask: 

Is  the  declaration  of  war  such  a  law  ?  Does  that  declara- 
tion, by  its  own  operation,  so  vest  the  property  of  the  enemy 
in  the  government  as  to  support  proceedings  for  its  seizure  and 
confiscation,  or  does  it  vest  only  a  right,  the  assertion  of  which 
depends  on  the  will  of  the  soveriegn  power  ? 

The  universal  practice  of  foibearing  to  seize  and  confiscate 
debts  and  credits,  the  principle,  universally  received,  that  the 
right  to  them  revives  on  the  restoration  of  peace,  would  seem 
to  prove  that  war  is  not  an  absolute  confiscation  of  this  prop- 
erty, but  simply  confers  the  right  of  confiscation. 

Between  debts  contracted  under  the  faith  of  laws  and  prop- 
erty acquired  in  the  course  of  trade,  on  the  faith   of  the   same 
laws,  reason  draws  no  distinction,  and  although   in  practice, 
vessels  with  their  cargoes  found   in  port   at  the  declaration  of 
war  may  have  been  seized,    it   is   not  believed   that   modern 
usage  would  sanctiop  the  seizure  of  the  goods  of  an  enemy  on 
land,  which  were  acquired  in  peace   in   the  course  of   trade. 
Such   a  proceeding  is   rare,   and   would    be   deemed  a   harsh 
exercise  of  the  right  of  war.     But  although  the  practice  in  this 
respect    may   not   be    uniform,    that    circumstance    does    not 
essentially  affect  the  question.     The  inquiry   is  whether  such 
property  vests  in  the  sovereign  by  the  mere  declaration  of  war, 
or  remains  subject  to  a  right  of  confiscation,  the   exercise  of 
which  depends  on  the  national  will ;  and  the  rule  which  applies 
to  one  case  so  far  as  respects  the  operation  of  a  declaration  of 
war  on  the  thing  itself,  must  apply  to  all  others  over  which 
war  gives  an  equal  right.     The  right  of  a  sovereign  to  con- 
fiscate debts  being  precisely  the  same  with  the  right  to  confis- 
cate  other  property  found  in  the   country  must  be  the   same. 
What,  then,  is  this  operation? 

Even  Bynkershoek,  who  maintains  the  broad  principle  that 
in  war  everything  done  against  an  enemy  is  lawful;  that  he 
may  be  destroyed  though  unarmed  and  defenseless ;    that  fraud 


J  72       MOOES  OF  OBTAININT,  TITLE  TO  PERSONAL  PROl'ERTV. 

or  even  poison  may  be  employed  against  him ;  that  a  most 
unlimited  right  is  acquired  to  his  person  and  property;  admits 
thai  war  does  not  transfer  to  the  sovereign  a  debt  due  to  his 
enemy  ;  and,  therefore,  if  payment  of  such  debt  be  not  exacted, 
peace  revives  the  former  right  of  the  creditor;  "because"  he 
says,  "the  occupation  which  is  had  by  war  consists  more  in  fact 
than  in  law."  He  adds  to  his  observations  on  this  subject, 
"let  it  not,  however,  be  supposed  that  it  is  only  true  of  actions, 
that  they  are  not  condemned  ipo  jure,  for  other  things,  also, 
belonging  to  the  enemy,  may  be  conceded  and  escape  con- 
demnation." 

Vattel  says  that  "the  sovereign  can  neither  detain  the  per- 
sons nor  the  property  of  those  subjects  of  the  enemy  who  are 
within  his  dominions  at  the  time  of  the  declaration." 

It  is  true  that  this  rule  is  in  terms  applied  by  Vattel  to  the 
property  of  those  only  who  are  personally  within  the  territory 
at  the  commencement  of  hostilities ;  but  it  applies  equally  to 
things  in  action  and  to  things  in  possession;  and  if  war  did,  of 
itself,  without  any  further  exercise  of  the  sovereign  will,  vest 
the  property  of  the  enemy  in  the  sovereign,  his  presence  would 
not  exempt  it  from  this  operation  of  war.  Nor  can  a  reason  be 
perceived  for  maintaining  that  the  public  faith  is  more  entirely 
pledged  for  the  security  of  property  trusted  in  the  territory  of 
the  nation  in  time  of  peace,  if  it  be  accompanied  by  its  owner, 
than  if  it  be  confided  to  the  care  of  others. 

Chitty,  after  stating  the  general  right  of  seizure,  says,  "but 
in  strict  justice,  that  right  can  take  effect  only  on  those  posses- 
sions of  a  belligerent  which  have  come  to  the  hands  of  his 
adversary  after  the  declaration  of  hostilities."     (P.  67.) 

The  modern  rule,  then,  would  seem  to  be  that  tangible  prop- 
erty belonging  to  an  enemy  and  found  in  the  country  at  the 
commencement  of  war  ought  not  to  be  immediately  confiscated ; 
and  in  almost  every  commercial  treaty  an  article  is  inserted, 
stipulating  for  the  right  to  withdraw  such  property. 

This  rule  seems  to  be  totally  incompatible  with  the  idea  that 
war  does  of  itself  vest  the  property  in  the  belligerent  govern- 
ment. It  may  be  considered  as  the  opinion  of  all  who  have 
written  on  xhs  jus  belli,  that  war  gives  the  right  to  confiscate, 
but  does  not  itself  confiscate  the  property  of  the  enemy;  and 
their  rule  goes  to  the  exercise  of  this  right. 


OPERTY. 

that  a  most 
erty;  admits 
)t  due  to  his 
;  not  exacted, 
'because"  he 
s  more  in  fact 

this  subject, 
ue  of  actions, 
r  things,  also, 

escape    con- 

Btain  the  per- 
nemy  who  are 
n." 

Vattel  to  the 
1  the  territory 
lies  equally  to 

if  war  did,  of 
eign  will,  vest 
iresence  would 
an  a  reason  be 
5  more  entirely 
he  territory  of 
i  by  its  owner, 

lire,  says,  "but 
n  those  posses- 
!  hands  of  his 
[P.  67.) 
:  tangible  prop- 
country  at  the 
ely  confiscated; 
cle  is  inserted, 
rty. 

th  the  idea  that 
igerent  govern- 
f  all  who  have 
it  to  confiscate, 
he  enemy;  and 


BUOWN   V.    UNITED    STATES. 


^73 


Having  thus  decided  that  war  gives  the  right,  in  accordance 
with  international  law,  to  confiscate  enemy's  property  in  the 
situation  of  this  cargo,  but  not  of  its  own  force,  the  court  next 
proceeded  to  inquire  whether  the  constitution  or  laws  of  the 
United  States  had  authorized  such  confiscation.  The  constitu- 
tion confers  upon  congress  the  power  "to  declare  war,  grant 
letters  of  marque  and  reprisal,  and  make  rules  concerning 
captures  on  land  and  water."  It  is  evident,  then,  that  the 
power  to  confiscate  is  vested  in  congress  and  that  it  is  not  in- 
cluded in  the  power  to  declare  war.  The  declaration  of  war, 
therefore,  did  not  authorize  confiscation ;  and  congress  had 
enacted  no  other  law  to  that  effect. 

Neither  is  it  admitted  that  the  executive,  in  executing  the 
laws  of  war,  may  seize  and  the  courts  condemn  all  property 
which,  according  to  the  modern  law  of  nations,  is  subject  to 
condemnation.  The  rule  is  in  its  nature  flexible.  It  is  subject 
to  infinite  modifications;  it  is  not  an  immutable  rule  of  law,  but 
depends  on  political  considerations  which  may  continually 
vary.  It  is  a  question  rather  of  policy  than  of  law;  and  like 
all  other  questions  of  policy,  it  is  proper  for  the  consideration 
of  a  department  which  can  modify  it  at  will ;  not  for  the  con- 
sideration of  a  department  which  can  pursue  only  the  law  as  it 
is  written.  It  is  proper  for  the  consideration  of  the  legislature, 
and  not  of  the  executive  or  judiciary. 

The  court  is,  therefore,  of  opinion  that  there  is  error  in  the 
sentence  of  condemnation  pronounced  in  the  circuit  court  in 
this  case,  and  doth  direct  that  the  same  be  reversed  and  an- 
nulled, and  that  the  sentence  of  the  district  court  be  affirmed. 

Mr.  Justice  Story,  with  a  'Tiinority  of  the  court,  held  that  the 
right  of  confiscation  existing,  it  was  within  the  power  of  the 
executive  to  enforce  confiscation,  in  -the  same  manner  that 
the  executive  established  blockades  and  authorized  the  capture 
of    the    enemy's  property  at  sea,  and  contraband  goods. 

Consult— Ware  v.  Hylton,  3  Dall.  199;  Mrs.  Alexander's  Cotton,  2 
Wall.  404;  Wilson  v.  Crockett,  43  Mo.  376;  Williamson  v.  Russell, 
49  Mo.  1S5;  Hanger  v.  Abbott,  6  Wall.  532;  New  York,  etc.,  Ins.  Co.  v. 
Stathem,  93  U.  S.  24;  Kershaw  v.  Kelsey,  100  Mass.  f,Cn;  The  Venus, 
8  Cranch,  253;  Bentzen  v.  Boyle,  9  Cranch,  191;  The  Prize  Cases,  2 
Black,  671;  U.  S.  V.  Moreno,  i  Wall,  hog;  U.  S.  v.  Grossmayer,  9  Wall. 
71;  McKee  v.  U.  S.,  8  Wall.  163;  Mut.  Ben.  Life  Ins.Co.  v.  Hillyard,  37 
N.  J.  (L.)  444. 


174       MOnKS  OF   OBTAINING  TITLE  TO  PERSONAL  PUOrEllTy. 

§  38.    Goods  abandoned  by  owner. 

HASLEM  V.  LOCKWOOD. 

[37  Conn.  500;  9  Am.  Rep.  351.] 
Sufrcmc  Court  of  Cofinccticut,  187 T. 

Trover  for  a  quantity  of  manure.  On  the  trial  it  appeared 
that  plaintiff,  on  the  cveninj,'  of  April  6,  1869,  gathered  into 
heaps  manure  lying  on  a  public  highway  in  the  borough  of 
Stamford,  intending  to  remove  the  same  to  his  own  lands  the 
next  evening.  Before  noon  the  next  day  defendant  removed 
the  manure  so  gathered.  The  fee  of  the  said  highway  was  in 
the  borough,  and  neither  plaintiff  nor  defendant  had  permis- 
sion from  the  authorities  to  remove  the-  manure,  although  its 
removal  was  beneficial  to  the  health  and  appearance  of  the 
borough.     The  manure  was  worth  $6. 

Plaintiff  claimed  that  the  manure  v  3  abandoned  personal 
property,  and  became  the  property  of  t.ie  first  possessor,  which 
he  became  by  gathering  it  into  heaps. 

The  defendant  claimed  that  the  manure  was  a  part  of  the 
realty,  and  belonged  to  the  owner  of  the  fee  of  the  highway ; 
and  further  that  if  it  was  personalty  the  plaintiff  had  abandoned 
it  by  leaving  it  after  having  raked  it  into  heaps. 

The  court  ruled  that  the  plaintiff  had  not  made  out  title  or 
right  of  possession  to  the  mtnure  and  rendered  judgment  for 
defendant. 

Plaintiff  moved  for  a  new  trial. 

Park,  J. — We  think  the  manure  scattered  upon  the  ground, 
under  the  circumstances  of  this  case,  was  personal  property. 
The  cases  referred  to  by  the  defendant  to  show  that  it  was 
real  estate  are  not  in  point.  The  principle  of  those  cases  is 
that  manure  made  in  the  usual  course  of  husbandry  upon  a 
farm  is  so  attached  to  and  connected  with  the  realty  that,  in 
the  absence  of  any  express  stipulation  to  the  contrary,  it  becomes 
appurtenant  to  it.  The  principle  was  established  for  the  benefit 
of  agriculture.  It  found  its  origin  in  the  fact  that  it  is  essen- 
tial to  the  successful  cultivation  of  a  farm  that  the  manure 
produced  from  the  droppings  of  cattle  and  swine  fed  upon   the 


I 


EllTY. 


HASI.EM    V.    I.OCKWOOD. 


»75 


;  appeared 
hered  into 
orou^h  of 
lands  the 
t  removed 
vay  was  in 
id  permis- 
thoiigh  its 
nee  of  the 

d  personal 
isor,  which 

)art  of  the 
;  highway ; 
abandoned 

3ut  title  or 
Jgment  for 


the  ground, 
1  property, 
that  it  was 
ose  cases  is 
dry  upon  a 
Ity  that,  in 
,  it  becomes 
r  the  benefit 
it  is  essen- 
the  manure 
d  upon   the 


products  of  the  farm,  and  composted  with  earth  and  vegetable 
matter  taken  from  the  lanii,  siiould  be  used  to  supply  the  drain 
made  upon  the  soil  in  the  production  of  crops,  which  otherwise 
would  become  impoverished  iind  barren ;  and  in  the  fact  that 
manure  so  produced  is  generally  regarded  by  farmers  in  this 
country  as  a  part  of  the  realty,  and  has  been  so  treated  by 
landlords  and  tenants  from  time  immemorial.  Daniels  v.  Pond, 
21  Pick.  367  ;  Le\vis  V.  Lyman,  22  Id.  437  ;  Kittredgev.  Woods, 
3  N.  H.  503  ;  Lasscll  v.  Reed,  6  Greenl.  222  ;  Parsons  v.  Camp, 
II  Conn.  523;  Fay  v.  Muzzy,  13  Gray,  53;  Goodrich  v.  Jones, 
2  Hill,  142;  I  Washb.  on  Real  Prop.  5,  6. 

But  this  principle  does  not  apply  to  the  droppings  of  ani- 
t.ials  driven  by  travelers  upon  the  highway.  The  highway  is 
not  used,  and  can  not  be  used,  for  the  purpose  of  agriculture. 
The  manure  is  of  no  benefit  whatsoever  to  it,  but,  on  the  con- 
trary, is  a  detriment;  and  in  cities  and  large  villages  it  becomes 
a  nuisance,  and  is  removed  by  public  officers  at  public  expense. 
The  finding  in  this  case  is  "that  the  removal  of  the  manure 
and  scrapings  was  calculated  to  improve  the  appearance  and 
health  of  the  borough."  It  is,  therefore,  evident,  that  the  cases 
relied  upon  by  the  defendant  have  no  application  to  the  case. 

But  it  is  said  that  if  the  manure  was  personal  property,  it 
was  in  the  possession  of  the  owner  of  the  fee,  and  the  scraping 
it  into  heaps  by  the  plf.hitiff  did  not  change  the  possession, 
but  it  continued  as  befoi:.,  and  that,  therefore,  the  plaintiff 
can  not  recover,  for  he  neither  had  the  possession  nor  the  right 
to  the  immediate  possession. 

The  manure  originally  belonged  to  the  travelers  whose  ani- 
mals dropped  it,  but,  it  being  worthless  to  them  was  imme- 
diately abandoned ;  and  whether  if  then  became  the  property 
of  the  borough  of  Stamford  which  owned  the  fee  of  the  land 
on  which  the  manure  lay,  it  is  unnecessary  to  determine ;  for 
if  it  did,  the  case  finds  that  the  removal  of  the  filth  would  "lie 
an  improvement  to  the  borough,  and  no  objection  was  made  by 
anyone  to  the  use  that  the  plaintiff  attempted  to  make  of  it. 
Considering  the  character  of  such  accumulations  upon  highways 
in  cities  and  villages,  and  the  light  in  which  they  are  everywhere 
regarded  in  closely  settled  communities,  we  can  not  believe  that 
the  borough  in  this  instance  would  have  had  any  objection  to 
the  act  of  the  plaintiff  in   removing  a  nuisance  that  affected 


176       MODES  OF  OltTAINlNG  TITLK  TO  PERSONAL  PROPERTY. 


the  public  hcfilth  and  the  appearance  of  the  streets.  At  all 
events,  we  think  the  facts  of  the  case  show  a  sufficient  right 
in  the  plaintifi  to  the  immediate  possession  of  the  property  as 
against  a  mere  wiongdoer. 

The  defendant  appears  before  the  court  in  no  enviable  light. 
He  does  not  pretend  that  he  had  a  right  to  the  manure,  even 
when  scattered  upon  the  highway,  superior  to  that  of  the  plain- 
tiff; but  after  the  plaintiff  had  changed  its  original  condition 
and  greatly  enhanced  its  value  by  his  labor,  he  seized  and 
appropriated  to  his  own  use  the  fruits  of  the  plaintiff's  out- 
lay, and  now  seeks  immunity  from  responsibility  on  the  ground 
that  the  plaintiff  was  a  wrongdoer  as  well  as  himself.  The 
conduct  of  the  defendant  is  in  keeping  with  his  claim,  and 
neither  commends  itself  to  the  favorable  consideration  of  the 
court.  The  plaintiff  had  the  peaceable  and  quiet  possession 
of  the  property,  and  we  deem  this  sufficient  until  the  borough 
of  Stamford  shall  make  complaint. 

It  is  further  claimed  that  if  the  plaintiff  had  a  right  to  the 
property  by  virtue  of  occupancy,  he  lost  the  right  when  he 
ceased  to  retain  the  actual  possession  of  the  manure  after  scrap- 
ing it  into  heaps. 

We  do  not  question  the  general  doctrine  that  where  the 
right  by  occupancy  exists  it  exists  no  longer  than  the  party 
retains  the  actual  possession  of  the  property,  or  till  he  appro- 
priates it  to  his  own  use  by  removing  it  to  some  other  place. 
If  he  leaves  the  property  at  the  place  where  it  was  discovered, 
and  does  nothing  whatsoever  to  enhance  its  value  or  change 
its  nature,  his  right  by  occupancy  is  unquestionably  gone. 
But  the  question  is,  if  a  party  finds  property  comparatively 
worthless,  as  the  plaintiff  found  the  property  in  question, 
owing  to  its  scattered  condition  upon  the  highway,  and 
greatly  increases  its  value  by  his  labor  and  expense,  docs  he 
lose  his  right  if  he  leaves  it  a  reasonable  time  to  procure  the 
means  to  take  it  away,  when  such  means  are  necessary  for  its 

removal. 

Suppose  a  teamster  with  a  load  of  grain,  while  traveling 
the  highway,  discovers  a  rent  in  one  of  his  bags,  and  finds 
that  his  grain  is  scattered  upon  the  road  for  the  distance  of  a 
mile.  He  considers  the  labor  of  collecting  his  corn  of  more 
value  than   the  property  itself,  and  he  therefore    abandons    it 


an 

CO 

sit 
th< 

hi! 

he 
If 
W 


tin 
pr 

ek 

US( 

inj 
be 
of 
be 


ne 

( 
Fe 
Ro 


tw 
Pe 

pr( 
wa 
wh 
inj 


IITY. 


HUTHMACHKR    V.    HARRIS. 


77 


At  all 
snt  right 
•perty  as 

->]e  light. 
ire,  even 
lie  plain- 
:onclition 
ized  and 
iff's  out- 
e  ground 
If.  The 
aim,  and 
5n  of  the 
)ossession 
borough 

;ht  to  the 

when  he 

[ter  scrap- 

tvhere  the 
the  party 
le  appro- 
her  place, 
iscovered, 
or  change 
bly  gone, 
paratively 
question, 
way,  and 
;,  docs  he 
rocure  the 
u-y  for  its 

traveling 
and  finds 
tance  of  a 
n  of  more 
andons    it 


and  pursues  his  way.  A.  afterward  finds  the  grain  in  this 
condition,  and  gathers  it  kernel  by  kernel  into  heaps  hy  the 
side  of  the  road,  and  leaves  it  a  reasonable  time  to  procure 
the  means  necessary  for  its  removal.  While  he  is  gone  for 
his  bag  B.  discovers  the  grain  thus  conveniently  collected  in 
heaps  and  appropriates  it  to  his  own  use.  Has  A.  any  remeiiv.^ 
If  he  has  not,  the  law  in  this  instance  is  open  to  just  reproach. 
We  think  under  such  circumstances  A.  would  have  a  reason- 
able time  to  remove  the  property,  and  during  such  reasonable 
time  his  right  to  it  would  be  protected.  If  this  is  so,  then  the 
principle  applies  to  the  case  under  consideration. 

A  reasonable  time  for  the  removal  of  this  manure  had  not 
elapsed  when  the  defendant  seized  and  converted  it  to  his  own 
use.  The  statute  regulating  the  rights  of  parties  in  the  gather- 
ing of  seaweed  gives  the  party  who  heaps  it  upon  a  public 
beach  twenty-four  hours  in  which  to  remove  it,  and  that  length 
of  time  for  the  removal  of  the  property  we  think  would  not 
be  unreasonable  in  most  cases  like  the  present  one. 

We,  therefore,  advise  the  court  of  common  pleas  to  grant  a 
new  trial. 

Consult— McGoon  V.  Anthony,  ii  III.  559;  Lacrustir.e  Fert.  Co.  v. 
Ferry  Co.,  82  N.  Y.  476;  Smith  v.  Danville,  51  Me.  359;  Wilson  v. 
I^osseau,  4  How.  646. 


HUTHMACHER  v.  HARRIS. 

[38  Pa.  St.  491.] 

Suprsme  Court  of  Pennsylvania,  1861 

This  was  an  amicable  action  of  trover  and  conversion  be- 
tween Rosanna  Gardner,  administratrix,  and  Silas  Sutton  and 
Peter  H.  Scovill,  administrators  of  Elisha  Harris,  deceased 
against  David  M.  Huthmacher,  to  try  the  title  to  sundry 
promissory  notes,  bank  notes,  gold  and  silver  coin,  two  silver 
watches,  and  a  pocket  compass,  together  valued  at  $3,754.50, 
which  came  into  the  custody  of  the  defendant  under  the  follow- 
ing circumstances: 


„S    .on.s  o.  o.TA,.,xo  T,T,,r,  to  pkuso...  r„o,..UTV. 

..    ,   .     11      .«;-«      His  wife  had  died  some 

Elisha  Harris  died   .n  J"'^/^^^^;,  J\,",  ,,,ease  he    lived 

four  or  five   years   before   h.^.     Af  er  ^^^^^^^    ^^_^ 

entirely   -f;'!-\;";:^::;,,:„y  "hi     administrators   and  a 
inventory  of  h.s  effect    wakny^^^^^^      ^_^    ^^^   ^^^^^.^^^^^^ 

^^"'":frL:e     -n'-liishwas   foundasnuare   bo.  of 
room  of  his   nouse  b  twelve    inches 

„^!u.c.,  over  by  .he  »"""";^'™'°;;^°  *.  o        *»  bicU  wero 
„„,,  b).  him  oftacl  for  s*.  J-  ™"  '"°,,^„,  Huthmachor  for 

-St.n.n.paiah.bi,.^^^^^^^^^^^^ 

,he  following  aniens  »»"»"'  ":„?;„;',ij)  to  ,hj  valne 
vi..,  promissory  notes  »'  -■■■°;  .  P'^™  l^J'J,,  „,.,che». 
of  over  $3,000,  nearly  .«*>°  •""*;""''         „„„„  „f  the  facts 
..r  t:spC=  tS:  ;e"nrr  .L^mic*  action  in  this 

'""rt;rhrjr.:=r;:::o3^^^^^^^ 

prevalent  that  here  w  ^  „„,  ,„.e„,l  times  made 

Sr:e:L"t;r  Ccr,  when  offering  an  article.  ^^B.a 
„po„1t,  it  may  contain  the  «;!  -  '-»- ^^  ^„„,.,^„,„  ,,,. 

^i-'  1t™t,,:  Tthe    a^inis^ator  on  both  <lay.  of  the 
cussion  in  the  presence  ui  ,,       ^.^j^^. 

,ale"  (the  drill  machine  was  -  ^  <>n  the  last   day)  ^^^^ 
tion    to    Mr.    Harris'    money   and  paper., 
might  be."  money,  etc.,  were 

aeLr/er:;t=°;i*:tr  :"  tlir  ret,;™  reffse.  by  the 
defendant  before  the  amicable  action  was  entered. 


Mi 


TV. 

id  some 
le    lived 
eath,  an 
s   and  a 
ifinlshed 
;   box  of 
e    inches 
nd  a  half 
li   a   per- 
achinery, 
tide    was 
!  vendue, 
nds   were 
lachcr  for 
US  not  to 
ned  in  the 
)ld   to    the 

home  with 
t  to  be  of 
)pcn  when 
;   exposed, 
o  the  value 
watches, 
of  the  facts 
ction  in  this 

m  idea  very 
ealed  about 
times  made 
aticle,  "Bid 

iderable  dis- 

[1  days  of  the 

y)   "in  rela- 

vvhere   they 


HUTHMACHER   V.    HARRIS. 


179 


ey, 


etc.,  were 


fused  by  the 


The  defendant's  counsel  requested  the  court  to  charge  the 
jury  that  if  they  believed  the  evidence  their  verdict  should  be 
for  the  defendant. 

The  court  (Conyngham,  P.  J.)  charged  that  the  verdict  of 
the  jury  under  the  undisputed  facts  of  the  case,  should  be  for 
the  plaintiffs  for  the  value  of  the  articles  above  mentioned, 
reserving  the  point  of  the  defendant's  right  in  law  to  the  articles 
claimed,  to  be  disposed  on  the  evidence ;  the  counsel  agreeing 
that  judgment  should  be  entered  for  the  defendant  /ton  obstante 
veredicto  if  the  law  required  it;  either  party  to  be  at  liberty  to 
sue  out  a  writ  of  error. 

The  jury  found  for  plaintiffs  $4,500,  and  on  the  twelfth  of 
November,  i860,  the  court  in  a  learned  and  elaborate  opinion 
directed  judgment  to  be  entered  on  the  verdict. 

Woodward,  J.— The  ground  on  which  we  affirm  this  judg- 
ment is  that  there  was  no  sale  of  the  valuables  contained  in  the 
block  of  wood  which  is  called,  in  virtue  of  its  horizontal  wheel 
and  upright  spindle,  a  drill  machine.  Sale,  says  Mr.  Justice 
Wayne  in  Williamson  v.  Berry,  8  How.  544,  is  a  word  of 
precise  legal  import,  both  at  law  and  in  equity.  It  means  at 
all  times  a  contract  between  parties  to  pass  rights  of  property 
for  money  which  the  buyer  pays,  or  promises  to  pay,  to  the 
seller  for  the  thing  bought  or  sold. 

That  no  such  contract  was  made  by  these  parties  in  respect 
to  the  contents  of  the  drill  machine  we  deduce  from  the  agreed 
facts  of  the  case.  The  machine  itself,  and  every  essential  part 
and  constituent  element  of  it,  were  well  sold.  The  considera- 
tion paid,  though  only  fifteen  cents,  was  in  law  a  quid  pro  quo, 
and  the  sale,  unaffected  by  fraud  or  misrepresentation,  passed 
to  the  purchaser  an  indefeasible  right  to  the  machine  and  all 
the  uses  and  purposes  to  which  it  could  be  applied.  But  the 
contents  of  the  machine  are  to  be  distinguished  from  its  con- 
stituent parts.  They  were  unknown  to  the  administrators, 
were  not  inventoried,  were  not  exposed  to  auction,  were  not 
sold.  Of  course,  they  were  not  bought.  All  that  was  sold  was 
fairly  bought,  and  may  be  held  by  the  purchaser.  The  title  to 
what  was  not  sold  remains  unchanged.  A  sale  of  a  coat  does 
not  give  title  to  the  pocketbook  which  may  happen  to  be  tem- 
porarily deposited  in  it,  nor  the  sale  of  a  chest  of  drawers  a 


I  So      MODES  OI--  om-AINING  TITLE  TO  PERSONAL  rUOPEUTY. 

title  to  the  deposits  therein.     In  these  cases,  and  many  others 
that  are  easily   inia^jined,  the  contents  are  not  essential  to  the 
existence  or  usefulness  of  the  thing  contracted  for,  and,  not 
being  within  the  contemplation  or  intention   of   the   contracting 
parties,  do  not  pass  by  the  sale.     The  contract  of  sale,  like  nil 
other  contracts,  is  to  be  controlled  by  the   clearly  ascertained 
intention  of  the  parties.     The  argument  proceeded  very  much 
on  the  doctrine  that  equity  will  in  certain  cases  relieve  against 
mistakes  of  fact  as  well  as  of  law ;  but  if  there  was  no  contract 
of  sale,  there   could   be  no   mistake   of   fact  to  vitiate    it,  and 
therefore  that  doctrine  has  no  possible  application.     Mistake  is 
sometimes  a  ground  of  relief  in  equity;  but  a  man  who  puts 
up  his  wares  at  auction  and  sells  them  to  the   highest  bidder, 
has  no  right  to  relief  on  the  ground  that  he   was  ignorant  of 
the  value  of  that  which  he  sold.     Such  a  mistake  comes  of  his 
own  negligence,  for  it  is  his  duty  to  possess  all  necessary  know- 
ledge of  the  value  of  that  which  he  brings  to  market,  and  Ihe 
rule  is  general  that  if  a  party  becomes  remediless  at  law  by  his 
own  negligence,  equity  will  leave  him  to  bear  the  consequences. 
Nor  could  these  administrators,  had  they  sold  the  contents, 
have  pleaded,  in    addition  to   their    ignorance,  their  fiduciary 
character,  and  their  possible  liability  for  a  devastavit,  in  defeat 
of  th^  vested  rights  of  the  purchaser;  for,   in   respect  to  the 
personalty  of  the  decedent,  they  stood  in  the  dead  man's  shoes, 
and   were   in  fact,  as  they   are   commonly   called   in   law,  his 
personal  representatives.     The   law   cast   the    personal   estate 
upon  them  for  purposes  of  administration,  and  a  fair  sale  made 
in  pursuit  of  that  purpose  would  confer  as  perfect  a  title  as  if 
made   by  a  living   owner.     They,    no   more   than    any   other 
vendor,  could  not  set  aside  such  a  sale  to  avert  the  consequences 
of  their  own  negligence. 

But,  inasmuch  as  they  did  not,  in  point  of  fact,  sell  the  valu- 
ables which  are  in  dispute,  these  principles,  and  all  the  argu- 
ments drawn  from  the  law  of  mistake,  are  outside  of  the  case. 
If,  then,  there  was  no  sale  and  purchase  of  the  contents  of 
the  block  or  machine,  how  did  Huthmacher,  when  he  discovered 
his  unsuspected  wealth,  hold  it?  Evidently  as  treasure  trove, 
which,  though  commonly  defined  as  gold  or  silver  hidden 
in  the  ground,  may,  in  our  commercial  day,  be  taken  to 
include  the  paper  representatives  of  gold  or  silver,  especially 


)PEUTY. 


HUTHMACHER   V.    HARRIS. 


i8i 


■nany  othcr8 
L'litial  to  the 
ir,  and,  not 

contracting 
sale,  like  nil 

ascertained 

very  much 
ieve  against 
i  no  contract 
tiate  it,  and 
Mistake  is 
in  who  puts 
hest  bidder, 

ignorant  of 
comes  of  his 
essary  know- 
•ket,  and  ihe 
at  law  by  his 
onsequences. 
the  contents, 
leir  fiduciary 
vit,  in  defeat 
jspect  to  the 
man's  shoes, 
I   in   law,  his 
rsonal   estate 
air  sale  made 
:t  a  title  as  if 
m    any   other 
consequences 

sell  the  valu- 
all  the  argu- 
B  of  the  case. 
le  contents  of 
he  discovered 
reasure  trove, 
silver  hidden 
be  taken  to 
rer,  especially 


when  they  are  found  hidden  with  both  of  these  precious  metals. 
And  it  is  not  necessary  that  the  hiding  should  be  in  the  ground, 
for  we  are  told,  in  3  Inst.  132,  that  it  is  not  "material,  whether 
it  be  of  ancient  time  hidden  in  the  ground,  or  in  the  roof,  or 
walls,  or  other  part  of  a  castle,  house,  building,  ruins,  or  other- 


wise. 


The  certain  rule  of  the  common  law,  in  regard  to  treasure 
trove,  as  laid  down  by  Uracton,  lib.  3,  cap.  3,  and  as  quoted  in 
Viner's  Abridgment,  is,  "that  he  to  whom  the  property  is, 
shall  have  treasure  trove,  and  if  he  dies  before  it  be  found,  his 
executors  shall  have  it,  for  nothing  accrues  to  the  king  unless 
where  no  one  knows  who  hid  that  treasure."  The  civil  law 
gave  it  to  the  finder,  according  to  the  law  of  nature,  ami  ^ve 
suppose  it  was  this  principle  of  natural  law  that  was  referit  d 
to  in  what  was  said  of  treasure  trove  in  a  field,  in  Matthew's 
Gospel,  XIII,  43. 

But  the  common  law,  which  we  administer,  gave  always 
to  the  ownf^r  if  he  could  be  found,  and  if  he  could  not  be,  th( 
to  the  king,  as  wrecks,  strays,  and  other  goods  are  ,n;Iven, 
"w'u.reof  no  person  can  claim  property."  3  Inst.  132.  Hutii- 
macher,  therefore,  held  the  unsold  valuables  for  the  persona! 
representatives  of  the  deceased  owner. 

Several  sporadic  cases,  some  of  which  were  highly  pn'^cryphal, 
were  mentioned  in  the  argument  as  affording  analogies  more 
or  less  appropriate  to  this  case,  but  it  is  quite  unnecessary  to 
discuss  them,  because  if  they  touch,  they  do  not  incumber,  the 
clear  ground  whereon,  as  above  indicated,  we  rest  our  iudg- 
ment. 

The  judgment  is  affirmed. 

Consult — Eads  v.  Brazleton,  22  Ark.  499,  79  Am.  Dec.  88;  Wyman  v. 
Hurlburt,  12  Ohio,  81,  40  Am.  Dec.  461;  The  Wurts,  Olcott,  49;  Baker 
V.  Hoag,  7  N.  Y.  555,  59  Am.  Dec.  431;  Barker  v.  Bates,  13  Pick.  255,  23 
Am.  Dec.  678;  Proctor  v.  Adams,  113  Mass.  377,  18  Am.  Rep..  500;  Fos- 
ter V.  Juniata  Bridge  Co.,  16  Pa.  St.  393,  55  Am.  Dec.  506. 


iSa       MODES  OF  OBTAINIXG  TITLE  TO  PERSONAL  PROPERTY. 

§  39.    Lost  property-What  is  and  what  is  not. 
DURFLE  V.  JONES. 

[II  R.  I.  588;  2?  Am.  Rep.  52S.] 

Supreme  Court  of  Rhode  Island,  1877. 

DURFEE,  C.  J.-The  facts  in  this  case  are  briefly  these:     In 
Wl,iS74,  the  plaintiff  bought  an  old  safe  and  soon  afterward 
nfu-ucted  his  agent  to  sell  it  again.     The  agent  offered  to  sell 
Tto  the  defendant  for  $ro  but  the  defendant  refused  to  buy  it. 
The  agent  then  left  it  with  the  defendant,  who  was  a  blacksmith, 
at  his  shop  for  sale  for  $10,  authorizing  him  to  keep  his  books  m 
it  until  it  was  sold  or  reclaimed.  The  safe  was  old-fash.oned,  of 
sheet  iron,  about  three  feet  square,  having  a  few  pigeon  holes  and 
a  ;    ce  for  books,  and  back  of  the  place  for  books  a  large  cr..ck 
L  the  lining.     The  defendant,  shortly  after  the  safe  was  left, 
uVon    examining    it,  found,    secreted   between   the  sheet  non 
Te  ior  ri  the'  wooden  lining,  a  roll   of  bills   amounting  to 
$^6     of  the  denomination  of  the  national  bankbuls  which  have 
b  en  current  for  the  last   ten   or   twelve    years.     Neither  the 
p  "ntiff  nor  the  defendant  knew  the  money  was  there  before  it 
was  found.     The  owner  of  the  money  is  still  unknown.     The 
Tfendant  informed  the  plaintiff's  agent  that  he  h^f  found  j, 
and  offered  it  to  him  for  the  plaintiff;  but  the  agent  declined  U, 
Htinc  that  it  did  not  belong  to  either  himself  or  the  plaintiff, 
Z  aSvised  the  defendant  to  deposit  it  where  it  would  be  draw- 
ing  interest  until   the  rightful  owner   appeared.     The   plaint  H 
Zl  then  out  of  the  rity.  Upon  his  return,  being  informed  of  the 
^^ing,  he  immediately  called  on  the  defendant  and  asked  for 
the  mo^ey,  but  the  defendant  refused  to  give   i    to  h.m      He 
hn   after  taking  advice,  demanded  the  return  of  the  safe  and 
sntents,  precisely  as  they  existed  wh.n  P'-^^   >n  the   d  - 
fendant's  hands.     The  defendant  promptly  gave  up   the   safe 
but  retained   the  money.     The  plaintiff   brings  this    action  to 
vprnver  A  or  its  equivalent. 

The  plaintiff  does  not  claim  that  he  acquired,  by  purchasing 
the  safe  any  right  to  the  money  in  the  safe  as  against  the  owner ; 
fo   he  bought  the  safe  alone,  not  the  safe  and  its  contents.    See 


im 


LOPERTY. 


>t. 


fly  these :     In 
oon  afterward 
jffered  to  sell 
ised  to  buy  it. 
a  blacksmith, 
;p  his  books  in 
l-fashioned,  of 
Tcon  holes  and 
s  a  large  crack 
safe  was  left, 
the  sheet  iron 

amounting  to 
ills  which  have 
.  Neither  the 
there  before  it 
nknown.  The 
;  had  found  it, 
ent  declined  it, 
r  the  plaintiff, 
vould  be  draw- 

The  plaintiff 
informed  of  the 
;  and  asked  for 
it  to  him.  He 
of  the  safe  and 
iced  in  the  de- 
ve  up  the  safe 
5  this    action  to 

1,  by  purchasing 
ainst  the  owner ; 
ts  contents.    See 


DURFEE  V.  JONES. 


i«3 


Merry  v.  Green,  7  M.  &  W.  633.  But  he  claims  that  as 
between  himself  and  the  defendant  his  is  the  better  right.  The 
defendant,  however,  has  the  possession,  and  theiefore  it  is  for 
the  plaintiff,  in  order  to  succeed  in  his  action,  to  prove  his  better 

right. 

The  plaintiff  claims  that  he  is  entided  to  have  the  money  by 
the  right  of  prior  possession.     But  the  plaintiff  never  had   any 
possession  of  the  money  except  unwittingly,  by  having  posses- 
sion of  the  safe  which  contained  it.     Such  possession,  if  pos- 
session it  can  be  c.illed,  does  not  of  itself  confer  a  right.     The 
case  at  bar  is  in  this  view  like  Bridges  v.  Hawkesworth,    15 
Jur.  1079,  31   L.  J.  Q.  B.  75,  A.  D.    1851;  7  Eng.  L.  i^  Eq. 
434.    In  that  case  the  plaintiff,  while  in  the  defendant's  shop  on 
business,  picked  up   from  the   floor  a  parcel  containing  bank 
notes.     He  gave  them  to  the  defendant   for  the   owner  if  he 
could  be  found.  The  owner  could  not  be  found  and  it  was  held 
that  the  plaintiff  as  finder  was  entitled  to  them  as   against   the 
defendant  as    owner  of  the   shop  in   which  they  were   found. 
"The  notes,"  said  the  court,  "never  were  in  the  custody  of  the 
defendant,  nor  within  the  protection  of  his  house   before   they 
were  found  as  they  would  have  been   if  they  had  been   inten- 
tionally deposited  there."     The  same  in  effect  may  be  said  of 
the  notes  in  the  case  at  bar,  for  though   they  were   originally 
deposited  in  the  safe  by  design,  they  were   not  so  deposited  in 
the  safe  after  it  became  the  plaintiff's  safe,  so  as  to  be  in  the 
protection  of  the  safe  as  /its  safe,  or  so  as  to  affect  him  with  any 
responsibility  for  them.     The  case  at  bar  is  also  in  this  respect 
like  Tatum  v.  Sharpless,  6  Phila.  iS.     There  it  was  held,  that 
a  conductor  who  had   found  money  which   had   been  lost  in   a 
railroad  car  was  entitled  to  it  as  against  the  railroad  company. 
The  plaintiff  also  claims   that  the  money  was  not  lost  but 
designedly  left  where  it  was  found  and    that  therefore  as  owner 
of  the  safe  he  is  entitled   to  its  custody.     He   refers   to  cases  in 
which  it  has  been  held  that  money  or  other  property  voluntarily 
laid  down  and  forgotten  is  not  in  legal  contemplation  lost  and 
that  of  such  money  or  property  the  owner  of  the  shop  or  place 
where  it  is  left  is  the  proper  custodian,  rather  than  the  person 
who  happens  to  discover  it  first.     State  v.  McCann,  19  Mo. 
349;    Lawrence   v.    The    State,  i    Humph.   128;   McAvoy  v. 
Medina,  11   Allen,  549.     It   may  be   questioned  whether  this 


,84       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

distinction  has  not  been  pushed  to  an  extreme.  See  Kincaid 
V  Eaton,  oS  Mass.  139.  But,  however  that  may  be,  we  thmk 
the  money  here,  ihou-h  designedly  left  in  the  safe,  was  not 
designedly  put  in  the  crevice  or  interspace  where  it  wa^ 
found,  but  that  being  left  in  the  safe  it  probably  slipped  or  was 
accidentally  shoved  into  the  place  where  it  was  found  without 
the  knowledge  of  the  ov\  ner  and  so  was  lost  in  the  stricter  sense 
of  the  word.  The  money  was  not  simply  deposited  and  forgot- 
ten, but  deposited  and  lost  by  reason  of  a  defect  or  insecurity  m 
the  place  of  deposit. 

The  plaintiff  claims  that  the  finding  was  a  wrongful  act  on 
the   part  of  the  defendant,  and  that,  therefore,  he  is  entitled  to 
recover  the  money  or  to  have  it  replaced.     We  do  not  so  regard 
it      The  safe  was  left  with  the  defendant  for  sale.     As  seller 
he  would  properly  examine  it  under  an  implied  permission  to 
do  so,  to  qualify  him  the  better  to  act  as  seller.     Also  under 
the  permission  to  use  it  for  his  books  he  would  have  the  right 
to  inspect  it  to  see  if  it  was  a  fit  depository.     And,  finally,   as 
a  possible  purchaser  he  might  examine  it,  for  though  he  had 
once  declined  to  purchase,   he    might,  on  closer  examination, 
change  his  mind.     And  the  defendant  having  found  in  the  safe 
something  which  did   not  belong  there,  might,  we  think,  prop- 
erly remove  it.     He   certainly  would  not  be   expected   either 
to  sell  the  safe  to  another  or  to  buy  it  himself   without  first  re- 
moving  it.     It  is  not   pretended    that  h'-  used  any  violence  or 
did  any  harm  to  tho  safe.     And  it  is   evident   that  the  idea  of 
any  trespass  or  tort  having  been  committed  did  not  even  occur 
to  the    plaintiff's    agent  when   he  was  first  informed  of   the 

finding. 

The  general  rule  undoubtedly  is  that  the  finder  of  lost  prop- 
erty is  entitled  to  it  as  against  all  the  world  except  the  real 
owner,  and  that,  ordinarily,  the  place  where  it  is  found  does 
not  make  any  difference.  We  can  not  find  anything  in  the 
circumstances  of  the  case  at  bar  to  take  it  out  of  this  rule. 

We  give  the  defendant  judgment  for  costs. 

See  cases  cited  in  note  to  Hamalier  v.  Blanchard,  post. 


MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY.       1S5 


LIVERMORE  v.  WHITE. 


[74  Me.  452,] 
Suf  rente  Judicial  Court  of  Maine,  1883. 

Appleton,  C.  J. — This  is  an  action  of  replevin  for  certain 
hides  of  tanned  leather.  The  plaintiff's  only  title  is  as  finder 
of  them  as  lost  goods.  The  verdict  being  against  him,  excep- 
tions were  duly  filed  to  the  rulings  of  the  presiding  justice, 
which  have  been  very  elaborately  and  ably  argued. 

It  is  in  proof  that  in  1840,  Edward  Southwick  was  then 
owning  and  carrying  on  a  large  tannery,  containing  seven 
hundred  and  eleven  vats,  of  which  the  vats  in  question  were 
part;  that  he  sold  the  tannery  to  Southwick  and  Weeks,  who 
occupied  a  portion  of  the  vats,  not  occupying  the  outside  vats ; 
that  Edward  Southwick  died  shortly  after  his  conveyance  of 
his  estate ;  that  the  same  passed  to  the  Vassalboro*  Manuf  ac- 
furing  Company,  which  erected  its  mills  thereon  over  twenty 
years  ago ;  that  the  defendant  is  their  agent  and  servant ;  that 
while  the  company  "^re  digging  to  lay  a  foundation  for  a 
brick  building  in  addition  to  their  present  erection,  the  plain- 
tiff, a  servant  in  their  employ,  discovered  the  vats  and  the 
leather  therein,  by  virtue  of  which  discovery  he   claims  title 

thereto. 

It  further  appeared  that  these  hides  were  identified  as  hides 
placed  in  the  vats  by  Edward  Southwick,  and  omitted  to  be 
taken  when  his  vats  were  emptied. 

I.  Upon  the  question  of  abandonment  the  jury  were  in- 
structed that  if  they  should  "find  that  the  owners,  for  any 
reason  satisfactory  to  themselves  (at  that  time)  intentionally 
abandoned  these  hides,  expecting  that  the  first  finder,  the  first 
explorer  or  excavator,  should  take  possession  and  enjoy  the 
property  ?nd  the  benefit  *  *  *  with  an  intention  of  the  owner  or 
agent  not  to  resume  possession,  and  not  to  claim  any  control 
or  dominion  over  them  thereafter,  finally  relinquishing  all  in- 
terest in  them  *  •  *  then  these  finders,  under  the  rules  given, 
would  have  a  right  to  the  possession  as  against  all  persons 
whatsoever,"— but  if  they  should  find  that  Edward  Southwick, 
or  his  agent,  or  •  *  *  "any  owner,  whoever  he  may  have  been, 


lS6       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

of  these  hides,  intentionally,  carefully,  voluntarily,  and  in  the 
ordinary  course  of  business,  placed  them  there  as  his  property, 
and  they  were  accidentally  or  inadvertently  overlooked  and 
forgotten,  they  remained  the  property  of  such  owner  or  the 
heirs  of  such  owner  or  of  his  estate  to  the  present  time." 

The  instruction  is  correct.  Abandonment  includes  both  the 
intention  to  abandon  and  the  external  act  by  which  the  in- 
tention is  carried  into  effect.  Here  the  act  was  one  of  pres- 
ervation—the proprietor  expending  labor  upon  his  property 
thereby  to  enhance  its  value.  It  was  an  act  which  excludes 
the  very  idea  of  abandonment. 

In  McLaughlin  v.  White,  2  Wend.  405,  Chancellor  Wal- 
worth  says:  "li  chattels  are  found  secreted  in  the  earth  or 
elsewhere,  the  common  law  presumes  the  owner  placed  them 
there  for  safety,  intending  to  reclaim  them.  If  the  owner  can 
not  be  found,  he  is  presumed  to  be  dead,  and  that  the  secret 
died  with  him.  In  such  cases,  the  property  belongs  to  the 
sovereign  of  the  country  as  the  heir  to  him  who  was  the  owner; 
but  if  they  are  found  upon  the  surface  of  the  earth  or  in  the 
sea  and  if  no  owner  appears  to  claim  them,  it  is  presumed  they 
have  been  intentionally  abandoned  by  the  former  proprietor, 
and  as  such  they  are  returned  into  the  common  mass  of  things, 
as  in  a  state  of  nature." 

They  consequently  belong  to  the  finder  or  first  occupant, 
who  thinks  fit  to  appropriate  them  to  his  own  use.  i  Bl.  Com. 
308;  2  Id.  402.  Here  there  was  no  secreting  of  the  hides;  no 
intentional  abandonment,  and  the  estate  to  which  the  property 
belongs  is  known.  The  only  title  of  the  plaintiff  is  by 
finding,  but  under  the  circumstances  he  acquires  no  right  to  the 

property. 

The  civil  law  recognizes  the  title  by  finding,  by  occupation, 
which  gives  property  in  a  thing  which  previously  had  no 
proprietor,  ^uod  enim  ante  nullius  est,  id  naturali  ratione 
occH-panti  conceditur.  Inst.  2,  1,  12.  If  a  thing  already  had 
an  owner,  it  is  only  by  dereliction  by  him  that  it  can  be  appro- 
priated by  occupation.  Dereliction  or  renunciation  properly 
requires  both  the  intention  to  abandon  and  external  action. 
Thus  the  casting  overboard  of  articles  in  a  tempest  to  lighten 
the  ship  is  not  dereliction,  as  there  is  no  intention  of  aban- 
doning the  property  in  the  case  of  salvage.    Inst.  2,  i,  48.    Nor 


im 


LIVEUMORE   V.    WHITE. 


187 


does  the  mere  intention  of  abandonment  constitute  dereliction 
of  property  without  a  throwing  away  or  removal,  or  some 
other  external  acts,  and  herein  dereliction  of  property  differs 
from  dereliction  of  possession,  which  does  not  require  the 
second  element.  "There  is  this  difference  between  dominion 
and  possession, — that  dominion  continues  after  the  will  to  own 
has  ceased,  whereas  possession  ceases  with  the  will  to  possess." 
Poste's  Gains,  170. 

By  Hadrian's  law,  when  treasure  was  found  by  anyone  on 
his  own  land,  it  became  his  property,  but  if  found  accidentally 
on  the  land  of  another,  one  half  belongs  to  the  finder,  and  the 
other  half  to  the  owner  of  the  land.  This  rule  is  adopted  in 
the  French  code.     Code  Civil  Act,  713;  MacKenzie's  Roman 

Law,  170. 

II.  Nor  can  this  be  deemed  treasure  trove,  which  is  thus 
defined  in  Jacobs'  Dictionary.  It  is  "where  any  money  is 
found  hid  in  the  earth,  but  not  lying  upon  the  ground,  and  no 
man  knows  to  whom  it  belongs."  Nothing  is  treasure  trove 
but  gold  or  silver.  "It  is  not  treasure  trove  if  the  owner  can 
be  known.  Nor  though  the  owner  be  dead  ;  for  his  executors 
or  .administrators  shall  have  it."  Com.  Dig.  Art.  Warp.  G. 
All  the  elements  constituting  treasure  trove  are  wanting.  Here 
was  no  hiding.  Here  was  no  secrecy.  The  owner  was  known. 
The  deposit  was  not  for  concealment,  but  in  the  usual  and 
ordinary  mode  of  business. 

III.  This  is  not  a  case  of  lost  goods.  The  owner  is 
shown.  They  belong  to  his  estate.  The  title  of  the  finders 
vanishes  when  the  owner  is  known.  These  goods  were  not  lost. 
The  facts  negative  a  loss  by  the  owner.  The  hides  were  through 
carelessness  left  in  the  vat.  If  the  fact  of  their  being  there  was 
forgotten  by  the  owner,  they  are  none  the  less  his, — and  thou.^h 
forgotten  they  are  not  lost.     They  remain  in  the  vats  subject  to 

his  control. 

InMcAvoy  v.  Medina,  11  Allen,  54S,  it  was  held  that  placing 
a  pocketbook  voluntarily  by  a  customer  upon  a  table  in  a  shop, 
and  accidentally  leaving  it  there  or  forgetting  to  take  it,  is  not 
to  lose  it,  within  the  sense  in  which  the  authorities  speak  of  lost 
property.  "To  discover  an  article  voluntarily  laid  down  by 
the  owner  in  a  banking  room,  and  upon  a  desk  provided  for 
such  persons  having  business  there,  is  not  the  finding  of  a  lost 


iSS       MODES  OF  OBTAINIXG  TITLE  TO  PERSONAL  PROPERTY. 

article,"  remarks  Wells,  J.,  in  Kincaid  v.  Eaton,  9S  Mass. 
139.  "Property  is  not  lost  in  the  sense  of  the  rule,"  observes 
Trunkey,  J.,  in  Hamaker  v.  Blanchard,  90  Penn.  577,  "if  it 
was  intentionally  laid  on  the  table,  counter,  or  other  place,  by 
the  owner,  who  forgot  to  take  it  away,  and  in  such  case  the 
proprietor  of  the  premises  is  entitled  to  retain  the  custody." 
"The  lobS  of  goods,"  the  court  say,  in  Lawrence  v.  State,  i 
Humph.  2 38,  "in  legal  and  common  intendment,  depends  on 
something  more  than  the  knowledge  or  ignorance,  the  memory 
or  want  of  memory  of  the  owner  as  to  their  locality  at  any 
given  moment.  *  •  *  To  lose  is  not  to  place  anything  care- 
fully and  voluntarily  in  the  place  you  intend,  and  then  forget 
it;  'it  is  casually  and  mvoluntarily  to  part  from  the  possession  ; 
and  the  thing  is  then  usually  found  in  a  place  or  under  circum- 
stances to  prove  to  the  finder  the  owner's  will  was  not  employed 

in  placing  it  there." 

The  instructions  upon  the  controverted  questions  were  correct. 
Hides  in  a  vat  for  the  purpose  of  tanning,  though  not  removed 
when  the  other  vats  are  cleared,  are  not  to  be  deemed  aban- 
doned or  derelict,— nor  though  remaining  in  the  vats  for  .  long 
period  through  the  forgetfulness  of  their  owner  or  the  ignorance 
of  his  representative,  are  they  to  be  considered  lost,  so  that  the 
finder  thereby  acquires  a  title  to  them.  Nor  can  the  finding  be 
deemed  treasure  trove,  for  there  was  no  gold  or  silver  hidden, 

and  no  hiding. 

Exceptions  overruled. 

CoNSULT-Huthmacher  v.  Harris,  ante,  p.  177;  Lawrence  v.  State,  i 
Humph.  223,34  Am.  Dec.  644;  Kincaid  v.  Eaton.  98  Mass.  139;  Severn 
V.  Yoran.  16  Ore.  267,  8  Am.  St.  Rep.  293i  McAvojr  v.  Medina,  11 
Allen,  548. 


riiH 


MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PUOPERTV.        1S9 


§  40.    Rights  of  finder  of  lost  property. 

HAMAKER  v.  BLANCHARD. 

[90  Pa.  St.  377,  35  Am.  Rep.  664.] 

Supreme  Court  of  Pennsylvania^  1^79' 

Sophia  Blanchard  was  a  domestic  in  a  hotel  of  which  the 
defendant  was  the  proprietor.  While  thus  employed  she  found 
in  the  public  parlor  three  twenty  dollar  bills.  On  finding  the 
money  she  informed  defendant  and,  upon  his  remarking  that  he 
thought  it  belonged  to  a  certain  transient  guest,  she  gave  it  to 
him  for  the  purpose  of  returning  it  to  the  guest.  It  proved 
that  the  money  did  not  belong  to  the  guest,  and  no  claim  was 
made  to  it  by  anyone.  Sophia  afterward  demanded  it  of 
defendant,  who  refused  to  deliver  it  to  her.  The  plaintiff  had 
judgment  below. 

Trunkey,  J.— It  seems  to  be  settled  law  that  the  finder  of 
lost  property  has  a  valid  claim  to  the  same  against  all  the  world 
except  the  true  owner,  and  generally  that  the  place  in  which  it 
is  found  creates  no  exception  to  this  rule.     But  property  is  not 
lost,  in  the  sense  of  the  rule,  if  it  was  intentionally  laid  on  a 
table,  counter,  or  other  place  by  the  owner,  who  forgot  to  take 
it  away,  and  in  such  case   the  proprietor  of  the  premises  is 
entitled    to    retain   the   custody.     Whenever  the  surroundings 
evidence  that  the  article  was  deposited  in  its  place,  the  finder 
h.is  no  right  of  possession  against  the   owner  of  the  building. 
McAvoy   V.    Medina,     ii    Allen,    54S.     An    article    casually 
dropped  is  within  the  rule.     Where  one  went  into  a  shop,  and, 
as  he  was  leaving,  picked  up  a  parcel  of  bank  notes  which  was 
lying  on  the  floor,  and  immediately  showed  them  to  the  shop- 
man, it  was  held  that  the  facts  did  not  warrant  the  supposition 
that   the   notes   had  been  deposited   there   intentionally,    they 
being  manifestly  lost  by  someone  ;  there  were  no  circumstances 
in  the   case  to  take  it  out  of  the  general  rule   of  law  that  the 
finder  of   a  lost   article   is  entitled  to  it  as  against  all  persons 
except  the    real    owner.     Bridges   v.    Hawkesworth,    7   Eng. 
L.  &  Eq.  R.  4H- 


I90       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

The  decision  in  Mathews  v.  Harsell,  i  E.  D.  Smith,  393.  is 
not  in  contlict  with  the  principle,  nor  is  it  an  exception.     Mrs 
Mathews,   a  domestic   in  the  house   of  Mrs.    Barmore,  found 
some  Texas  notes,  which  she  handed  to  her  mistress  to  keep  tot 
her.      Mrs.  Barmore  afterward  intrusted  the  notes  to  Harsell 
for  the  purpose  of  ascertaining  their  value,  informing  him  that 
she  was  acting  for  her  servant,  for  whom  she   held  the  notes. 
Harsell  sold  them  and  appropriated  the  proceeds,  whereupon 
Mrs.  Mathews  sued  him  and  recovered  their  value,  with  interest 
from  date  of  sale.     Such  is  that  case.     True,   Woodruff,  J., 
says-     "I  am  by  no  means  prepared  to  hold  that  a  house  serv- 
ant who   finds  lost  jewels,  money,  or  chattels,  in  the  house  of 
his  or  her  employer,  acquires  any  title  even  to  retain  possession 
against  the  will  of  the  employer.     It  will  tend  much  more  to 
promote   honesty  and  justice  to  require  servants  in  such  cases 
to  deliver  the  property  so  found  to  the  employer,  for  the  bene- 
fit of  the  true  owner."     To  that  remark,  foreign  to  the  case  as 
understood  by  himself,  he  added  the  antidote:     "And  yet  the 
court  of  Queen's  Bench  in  England  have  recently  decided  that 
the  place  in  which  a  lost  article  is  found  does  not  form  the 
ground  of   any  exception  to  the  general  rule  of  law  that  the 
fmder  is  entitled  to  it  against  all  persons  except  the  owner. 
His  views  of  what  will  promote  honesty  and  justice  are  entitled 
to  respect,   yet  many  may  think  Mrs.   Barmore' s  method  of 
treating  servants  far  superior. 

The  assignments  of  error  are  to  so  much  of  the  charge  as 
instructed  the  jury  that,  if  they  found  the  money  in  questioii 
was  lost,  the  defendant  had  no  right  to  retain  it  because  found 
in  his  hotel,  the  circumstances  raising  no  presumption  that  it 
was  lost  by  a  guest,  and  their  verdict  ought  to  be  for  the 
plaintiff.  That  the  money  was  not  voluntarily  placed  where  it 
was  found,  but  accidentally  lost,  is  settled  by  the  verdict. 

It  is  admitted  that  it  was  found  in  the  parlor,  a  public  place 
open  to  all.  There  is  nothing  to  indicate  whether  it  was  lost 
by  a  guest,  or  a  boarder,  or  one  who  had  called  with  or  without 
business.  The  pretense  that  it  was  the  property  of  a  guest,  to 
whom  the  defendant  would  be  liable,  is  not  founded  on  an  act 
or  circumstance  in  evidence. 

Many  authorities  were  cited  in  argument,  touching  the  rights, 
duties,  and  responsibilities  of  an  innkeeper  in  relation   to  his 


re 
m 
re 

O' 

01 

tl 

P 
ii 

P 
ii 

P 
e 
r 
ii 
c 


WATTS    V.    WAUD. 


191 


guests ;  these  are  so  well  settled  as  to  he  uncontroverted.     In 
respect  to  other  persons  than  guests,  an  innkeeper  is  as  another 
man.     When   money   is  found  in  his  house,  on  the  Hoor  of  a 
room   common   to  all   classes  of  persons,  no   presumption  of 
ownership  arises.     The  case  is  like  the  Hnding  upon  the  tlooi 
of  a  shop.     The  research  of  counsel  failed  to  discover  authority 
that  an  innkeeper  shall  have  an  article  which  another  finds  in  a 
public  room  of  his  house,  where  there  is  no  circumst.ince  point- 
ing to  its  loss  by  a  guest.     In  such  case  the  general  rule  should 
prevail.     If  the  finder  be  an  honest  woman,  who  immediately 
informs  her  employer,  and   gives  him  the  article  on  his  false 
pretense  that  he   knows  the   owner  and  will  restore  it,  she  is 
entitled  to  have  it  back  and  hold  it  till  the  owner  comes.     A  * 
rule  of  law  ought  to  apply  to  all  alike.     Persons  employed  in 
inns  will  be  encouraged  to  fidelity  by  protecting  them  in  equality 
of  rights  with  others. 

The  learned  judge  wa?  .ight  in  his  instructions  to  the  jury. 

Judgment  affirmed. 

Consult— Armory  v.  Delamirie,  i  Strange,  505;  Mathews  v.  Harsell, 
1  E.  D.  Smith,  393;  Ellery  v.  Cunningham,  I  Mete.  112;  Tatum  v. 
Sharpless,  6  Phila.  18;  New  Yo.k  &  R.  Co.  v.  Hawes,  56  N.  Y.  175; 
Bowen  v.  Sullivan,  62  Ind.  281,  30  Am.  Rep.  172;  Lawrence  v.  Buck, 

62  Me.  275. 

As  to  finding  chose  in  action,  see  McLaughlin  v.  Waite,  5  Wend.  404, 
21  Am.  Dec.  232;  Tancil  v.  Seaton,  28  Gratt.  601,  26  Am.  Rep.  380. 


§  41.    Finder's  right  to  reward. 

WATTS  V.  WARD. 

[i  Ore.  86;  62  Am.  Dec.  299.] 

Supreme  Court  of  Oregon,  1854. 

Ward,  while  crossing  the  plains,  lost  two  horses  which  were 
found  by  Watts  and  recognized  as  being  the  property  of  Ward. 
Watts  took  possession  of  the  horses  with  the  intention  (as  he 
claimed)  of  delivering  them  to  Ward  when  he  should  pay  him 
for  his  trouble.  Watts  and  his  party  used  the  horses  for  driving 
cattle,  hunting  buffaloes,  and  in  a  variety  of  employments  con- 
nected with  their  position  as  emigrants  crossing  the  plains. 
He  also  allowed   another  emigrant  the  use  of   the  horses  for 


192       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROI'ERTY. 

about  two  months.  The  horses  both  died  while  in  the  posses- 
sion of  Watts,  one  upon  the  journey  and  the  other  the  follow- 
ing winter.  The  evidence  conflicted  as  to  whether  they  died 
from  sickness  or  hard  usage.  The  jury  were  instructed  sub- 
stantially that  Watts  had  a  right  to  use  the  horses  for  the  pur- 
pose of  bringing  them  to  Ward,  but  for  no  other  purpose  nor 
for  his  own  use.  They  returned  a  verdict  for  Ward ;  and  from 
a  judgment  thereon  Watts  appealed. 

Williams,  C.  J. — The  instruction  of  the  court,  it  is  said,  was 
erroneous.     No  doctrine  is  better  settled  at  common  law  than 
that  the  finder  of  lost  property   is  not  entitled  to  a  reward  for 
finding  it,  if  there  be  no  promise  of  such  reward  by  the  owner. 
Brinstead  v.  Buck,  2  Black.  1 1 17  ;  Nicholson  v.  Chapman,  2  H. 
Black.  254;  2  Kent's  Com.  356;  5  Mete.  352.     Some  of  the 
authorities  maintain  that  the  finder  of  lost  property   is  entitled 
to  recover  from  the  owner  thereof  his  necessary  and  reasonable 
expenses    in    the   finding   and    restoration    of    said    property. 
Amory  v.  Flyn,  10  Johns.    102 ;  2   Kent's  Com.  356.     Other 
authorities   seem   to  take   the    ground   that  the   finder   has  no 
legal  right  to  anything  from  the  owner  for  his  trouble  and  ex- 
pense in   finding  lost  property.     Brinstead  v.  Buck,  Nicholson 
V.  Chapman,  before  cited,  appear  to  stand  upon  this  principle. 
Chief  Justice    Eyre,   speaking  upon  this  subject  in  the  latter 
case,   says:     "Perhaps   it  is  better   for   the  public   that  these 
voluntary  acts  of  benevolence  from  one  man  to  another,  which 
are  charities  and  moral  duties,  but  not  legal  duties,  should  de- 
pend altogether  for  their  reward  upon  the  moral  duty  of  grati- 
tude." 

Chief  Justice  Shaw,  in  Wentworth  v.  Day,  5  Mete.  352,  says 
that  "the  finder  of  lost  property  on  land  has  no  right  of  salvage 
at  common  law."  Where  one  person  gratuitously  performs  an 
act  of  kindness  for  another,  the  law,  as  a  general  rule,  does  not 
recognize  the  right  to  a  compensation  for  such  act.  In  the 
case  of  Holmes  v.  Tremper,  20  Johns.  28,  it  was  held  that 
the  plaintiff  was  not  entitled  to  any  recompense  for  services 
rendered  in  saving  defendant's  property  from  fire,  because  such 
services  were  entirely  voluntary,  and  without  any  express  or 
implied  promise  on  the  part  of  defendant  to  pay  for  them.  No 
person  is  bound  in  law  to  take  trouble  with  property  which  he 


fi 
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ii 

f( 
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s- 
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ti 
a 

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I 


WATTS    V.    WARD. 


I9S 


finds;  and  if,  without  any  knowledge  of  the  owner's  wishes, 
he  docs  incur  expense  on  account  of  such  property,  does  he  not 
in  so  doing  trust  the  liberality  of  the  owner  rather  than  the 
force  of  law,  for  it  may  be  that  such  owner  did  not  desire  to 
have  his  property  disturbed,  or,  if  lost,  preferred  to  find  it  him- 
self. Much  of  the  stock  in  this  country  is  permitted  to  run  at 
large ;  and  if  every  animal  lost,  or  appearing  to  be  lost,  can  be 
taken  up  and  the  owner  thereof  legally  charged  for  all  trouble 
and  expense  thereby  incurred,  the  businesc  of  finding  cattle 
would  certainly  become  profitable,  and  pc-^ons  might  be 
largely  involved  in  debt  without  their  knowle^'^e  or  consent. 
Where  a  reward  is  offered  for  lost  property,  i.he  finder,  when 
he  complies  with  the  terms  of  the  offer,  has  a  right  to  retain 
the  property  in  his  hands  until  the  promised  reward  is  paid  to 
him.  Wentworth  v.  Day,  5  Mete.  352.  Persons  are  apt  to 
offer  a  reward  if  they  wish  to  pay  for  the  finding  of  lost  prop- 
erty. All  the  authorities  make  a  difference  between  the  find- 
ing of  property  lost  at  sea  and  the  finding  of  property  lost  on 
land.  Commercial  policy  allows  salvage  in  the  one  case,  be- 
cause there  is  peril  in  the  finding,  and  immediate  destruction 
threatens  the  property  ;  in  the  other  case  there  is  no  peril,  and 
generally  no  danger  that  the  property  will  be  destroyed.  But, 
if  it  be  admitted  that  the  owner  of  lost  property  is  bound  to 
remunerate  the  finder  for  his  trouble  and  expense  in  the  find- 
ing, it  is  certain  that  such  finder  can  not  pay  himself  as  he  goes 
along  using  the  property  for  that  purpose.  He  can  not  be  per- 
mitted to  judge  as  to  how  much  his  demand  for  trouble  and 
expense  shall  be,  and  then  as  to  how  much  he  ought  to  use  the 
property  to  satisfy  such  demand.  The  owner  has  rights  in 
these  matters,  and  must  be  consulted. 

Let  the  property,  when  found,  be  returned  to  the  owner,  and 
then  the  amount  and  mode  of  compensation,  if  any,  can  be 
determined.  Plaintiffs  in  this  case  having  treated  and  used 
the  horses  as  their  own,  for  their  own  benefit  and  gain,  de- 
fendant had  a  right  to  charge  them  with  a  conversion  of  the 
property,  and  maintain  his  suit  for  its  value. 

Judgment  affirmed. 

Consult— Reeder  v.  Anderson,  4  Dana,  193;  Etter  v.  Edwards,  4 
Watts,  63;  Marvin  V.  Flint,  37  Conn.  9;  Amory  v.  Flyn,  10  Johns. 
102,  6  Am.  Dec.  316;  Chase  v.  Corcoran,  106  Mass.  2S6. 

'3 


194 


MOPES 


S  Of  onTAINlNO  TITI.K  TO  PEnSONAL  IMtOl-bRTV. 


§  42.    Finder's  lien  for  expenses. 

WOOD  V.  IMEUSOX. 

[45  Mich.  313.] 
Supreme  Court  of  Michigan,  i8Sr. 

On  AVES   J.-Picrson  sued  in  replevin  and  obtained  judgment, 
and  Woo'd'and  Chapman  Hied  a  bill  of  exceptions  and  brou,,ht 
^.Tor.     The  subject  oi  the   action  was   a  breastpm  found  by 
C Cpman  and  claimed  by  Pierso.     Many  of  t^e    -ts  are  no 
disouted.     Pierson  lost  at  liay   C.ty,  July    ib,    1S7S,  a   smn.l 
iamond  pin,  which  seems  to  have  separated  from  the   tongue 
'Tome  «nk. own  way.     The  circumstances  of  the  loss  and    he 
Z^Zr  in  which  the  body  of  the  pin   and  tongue  became  d.s- 
Tied  are  left  unexplained.     The  metallic  setting  was  a   com- 
In  pattern,  and  the  gem  had   no  peculiarities  to  fac.htate 
^entification  by  nonexperts.     Pierson   caused   a  no Uce  to  be 
inserJed  in  the  Tribune  newspaper  published  in  the  c.ty,  of  th.s 

tenor : 

"LOST. 

u$35  RKWAUD-LosT.-A  diamond  pin.  The  f^mler  will  be 
paid  the  above  reward  by  leavin;;  the  same  at  th.s  oft.ce. 

As  will  be  observed,  the  advertisement  neither  gave  a  descrip- 
tion  of  the  pin  nor  suggested  who  offered  the  reward.  More- 
ov  r  n  .-ansof  anylind  were  provided  for  show.ng  at  U. 
nlw  paper  office  the  ownership  or  identity  of  the  p.n,  or  fo. 

rSgany  pin  which  might  be  P-^^--^^^^  ^;^;,:^;;: 
contai.ied  in  the  notice,  nor  was  any  money  left  w  th  vv^.ch  to 
pay  the  reward,  nor  any  provision  whatever  made  for  pay.ng  .t 

*^  Chapman  found  a  pin  which  was  subsequently  ascertained  to 
be  the^ne  in  question.     His  f^rst  impression  was,  when  he 
p  eked  it  up,  that  it  was  a  cheap  trinket,  but  on  second  thoug  t 
h    decided  to  show  it  to  a   jeweler.     Dirt  was  a^^^-nng  to  U 
amf  attention  was  at  once  drawn  to  the  fact  that,  although  th 
tongue  was  wholly  missing,  the  rivet  was  secure  and  hrm^y 
its  place.     The  query  naturally  arose  as  to  how  th.s  cond.t.on 


TV. 


WOOD    V.    PIERSOV. 


'95 


idfrment, 
brou^Mit 
oiind  by 
s  are  not 
,  a   sma'il 
e   tongue 
s  and  the 
;ame  dis- 
18  a  com- 
cilitate  its 
ice  to  be 
ty,  of  this 


ler  will  be 
ice." 

I  a  descrip- 
■d.  More- 
ving  at  the 
pin,  or  for 
the  claim 
h  which  to 
jr  paying  it 

:ertained  to 
s,  when  he 
and  thought 
lering  to  it, 
ilthough  the 
nd  firmly  in 
is   condition 


of  the  pin  and  the  absence  of  the  tongue  might  be  accounted 
for.  Mut  in  order  to  tlnd  out  wiietiier  it  had  any  material 
value,  Chapman  took  it  immediately  to  Wood,  the  other  de- 
fendant, he  being  a  jeweler,  and  was  by  him  told  that  the  stone 
was  a  diamond,  and  tiiat  a  diamond  pin  had  been  advcrtiscvi  in 
the  Tribune. 

On  getting  this  information  Chapman  went  at  once  to  the 
newspaper  otlice  and  saw  Mr.  Shaw,  the  editor  and  manager, 
who  showed  him  the  advertisement  anil  informed  him  who  the 
author  was.  Mr.  Shaw  referred  him  for  anything  further  to 
Mr.  Pierson,  and  he  at  once  carried  the  pin  to  Pierson's  store 
and  called  for  that  gentleman.  lie  was  absent.  Chapman  was 
going  from  the  city  the  next  morning,  and  he  told  a  clerk,  Mr. 
Martin,  that  he  had  found  a  pin,  and,  as  he  was  going  away,  he 
would  leave  it  at  Mr.  Wood's  to  be  identified  and  returned  to 
the  owner.  He  then  went  to  Wood's,  ;md  there  left  it  with 
instructions  to  give  it  to  the  person  who  should  identify  it  and 
pay  the  reward,  and  to  no  one  else.  This  was  Friday  evening, 
July  26.  The  next  morning  he  went  from  the  city  on  business, 
and  only  returned  the  Monday  following  at  noon.  During  his 
absence  Pierson  called  on  Wood  and  asked  to  see  the  pin  in 
order  to  identify  it,  and  Wood  declined  and  required  him  to 
identify  it  first.  Pierson  attempted  to  do  so,  but  he  failed  to 
satisfy  Wood,  and  in  the  judgment  of  another  jeweler  to  whom 
both  referred,  and  who  had  the  advantage  or  inspecting  both 
the  tongue  and  body  of  the  pin  and  of  comparing  them,  the 
physical  appearances  and  indications  were  strongly  against 
Pierson's  claim. 

In  respect  to  what  was  said  at  these  interviews  there  was 
want  of  harmony  in  the  testimony.  Pierson  requested  that 
another  jeweler  at  Bay  City,  who,  he  said,  had  formerly  re- 
paired the  pin,  and  had  a  plaster  cast  of  the  stone  and  could 
identify  it,  might  be  permitted  to  see  it.  But  Wood  proposed 
that  this  gentleman  should  call  with  his  mould,  and  he.  Wood, 
could  then  see  for  himself  whether  it  fitted  or  not.  The  gen- 
tleman came,  but  had  no  cast,  and  was  unable  to  give  a  partic- 
ular description,  and  Wood  declined  to  show  the  pin  to  him. 
Pierson  then  proposed  that  the  pin  should  be  sent  at  his  ex- 
pense for  the  purpose  of  identification  to  Mr.  Smith,  of  Detroit, 
who,  he  said,  had  mounted  it.     This  was  declined,  and  Wood 


196       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

suggested  that  Pierson  should  write  to  Smith  for  a  description, 
an  expedient,  he  observed,  which  would  be  attended  with  less 
risk,  but  th:-,  proposal  was  unacceptable  to  P.erson 

The  testimony  disagreed  as  to  the   incidents  of  the   effort  jo 
get  the   question   of   identification   settled  through  Mr.  .mith, 
and  in  regard  to  what  took  place  between  Pierson  and  Chapman 
after  the  return  of  Chapman  on  the  twenty-ninth.   On  Tuesday, 
the  thirtieth  of  July,  Pierson  sued  out  the  writ  of  replevin  and 
went  with  the  sheriff  to  Wood's  store  to  get  the  pm.     It  was 
not  produced,  and  indeed  was  not  then  in  the   store,  although 
the  fact  was  not  made  known  by  ^h-  Wood.     It  .s  unnecessary 
to  recite  the  different  versions  of  what  took  place.     On  the  next 
morning,  Wednesday,  the  thirty-first,  Mr.  Chapman  carried  the 
pin  to  Detroit  and  satisfactorily  ascertained  at  Mr.  Smith  s  that 
It  was  the  one  advertised  for  by  Mr.  Pierson.     He  returned  on 
Thursday,  and  on  Friday,  the  day   after,  met  the  ofbcer  and 
handed   the  pin  to  him,  with  the  request  to   get  the  reward 
Pierson  refused  to  pay  it,  and  on  giving  the  usual  replevm  bond 
received  the  pin  from  the  officer. 

It  has  seemed  propc    to  go  into  this  detail  on  account  of  the 
singularities  of  the  case.     Yet  it  must  not  be  assumeu  that  the 
outline  given  lends  the  exact  coloring  to  the  transaction  which 
would  be  perceptible  to  a  jury  on  hearing  the  whole  testimony. 
At  the  first  glance  every  one  must  admit  that  as  to  one  feature 
of  the  case,  at  least,  there  can  be  no  doubt.  The  facts  are  con- 
clusive that  the  parties  dispensed  with  the  newspaper  office  as 
a  place  for  doing  what  should  be   necessary  in  consequence  of 
the  reward.     Pierson  in  the  first  place  neglected  preparations 
which  were  incumbent  on  him  as  a  legal  preliminary  to  holding 
Chapman  to  a  compliance  at  that  place,  and  Chapm^an  did  not 
insist  on  performance  there.     Both  parties  proceeded  on  the 
tacit  understanding  tha.  whatever  was  to  be  done   should  be 
done  elsewhere.     So  much  is  too  clear  to  admit  discussion,  and 
neither  party  is  at  liberty  to  claim  any  advantage  on  account  of 
the  omission  to  transact  or  perform  at  the  printing  office 

According  to  the  common  law,  the  finder  of  goods  lost  on 
land  becomes  proprietor  in  case  the  true  owner  does  not  appear 
And  meanwhile  his  right  as  finder  is  a  perfect  right  «g«>n«t  a'l 
others      But  if  the  true  owner  does  appear,  whatever  right  the 
ender  may  have  against  him  for  recompense  for  the  care  and 


OPERTY. 

description, 
led  with  less 
I. 

the  effort  lo 
Mr.  Smith, 
nd  Chapman 
On  Tuesday, 
replevin  and 


•WOOD    V.    PIERSON. 


197 


pm. 


It  was 


ore,  although 
IS  unnecessary 
On  the  next 
an  carried  the 
,  Smith's  that 
2  returned  on 
le  officer  and 
t  the  reward, 
replevin  bond 

iccount  of  the 
umed  that  the 
isaction  which 
lole  testimony, 
to  one  feature 
!  facts  are  con- 
ipaper  office  as 
;onsequence   of 
d  preparations 
nary  to  holding 
apman  did  not 
)ceeded  on  the 
lone   should  be 
discussion,  and 
e  on  account  of 
ng  office, 
f  goods  lost  on 
Joes  not  appear, 
right  against  all 
atever  right  the 
jr  the  care  and. 


expense  in  the  keeping  and  preservation  of  the  property,  his 
status  as  finder  only  does  not  give  him  any  lien  on  the  property. 
Yet  if  such  owner  offer  a  reward  to  him  who  will  restore  the 
property,  a  lien  thereon  is  thereby  created  to  the  extent  of  the 
reward  so  offered.  This  doctrine  in  favor  of  a  lien  in  such 
circumstances  is  so  laid  down  in  Preston  v.  Nealc,  13  Gray, 
322,  and  .^.horities  are  cited  for  it.  Among  them  is  the 
leading  case  of  Wentworth  v.  Day,  by  Chief  Justice  Shaw, 
reported  in  3  Metcalf,  353,  and  which  is  approved  and  followed 
by  the  supreme  court  of  Pennsylvania  in  Cummings  v.  Gann, 
132  Pa.  St.  4S4,  adopted  as  correct  by  Story  in  his  work  on 
Bailments,  sees.  121  and  621a.  Parsons  has  given  it  his  sanction 
Ly  incorporating  it  in  the  text  of  his  work  on  Contracts  (vol.  3, 
p.  239,  6th  ed.).  and  Edwards  presents  it  as  settled  law  in  his 
treatise  on  Bailments,  sees.  20,  6S  (2d  ed.). 

Under  this  principle  the  admission  is  unavoidable  that  when 
Pierson  claimed  the  pin,  on  the  footing  of  his  notice  and  reward, 
of  Chapman,  the  finder,  who  was  holding  it  for  the  actual 
owner,  it  was,  as  between  them,  subject  to  alien  in  Chapman's 
favor  and  ag'-.inst  Pierson  for  the  reward.  According  to  the 
language  of  the  book-:,  Chapman  was  entitled  to  detain  the 
article  from  Pierson  until  the  reward  should  be  paid,  and  was 
under  no  legal  obligation  to  relinquish  possession  to  him,  or  to 
give  it  to  another,  or  to  allow  anything  to  be  done  endangering 
uis  right  or  security.  But  there  was  a  mutuality  of  rights.  As 
claimant,  Pierson  was  entitled  to  a  reasonable  time  and  to  fair 
and  reasonable  opportunity  in  reference  to  the  nature  of  the 
chattel,  the  existing  state  of  things  bearing  on  the  transaction, 
and  the  surrounding  circumstances,  and  without  impairing 
Chapman's  right  as  contingent  owner,  nor  his  right  of  lien,  nor 
interfering  with  his  duty  to  the  true  ownership  which  might  be 
subsequently  asserted  by  anothei,  lO  make  such  a  showing  as  he 
could  that  the  property  was  the  same  he  had  lost  and  advertised, 
and  such  evidence  as  would  satisfy  a  fair  and  reasonable  person 
of  the  fact. 

It  was  not  for  Chapman  to  baffle  investigation  by  any  unfair 
action  or  inaction,  or  give  way  to  unfounded  and  unreasonable 
suspicion,  and  then  object  that  the  evidence  of  identification 
was  not  sutVicient.  Nor  was  it  for  Pierson  to  demand  anything 
which  was  not  fair  and  just  under  the  circumstances,  and  need- 


I9S       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

ful  for  investigation,  and  consistent  with  Chapman's  rights  and 
duties,  and  then  make  its  refusal  a  pretext  for  charging  injustice, 
and  an  excuse  for  making  coses ;  and  in  regard  to  these  and 
similar  matters  it  was  for  the  jury  to  say  what  was  the  conduct 
of  the  parties  ;  whether  it  was  fair  and  reasonable  or  othe"wise  ; 
whether  either  or  both  materially  deviated  from  the  proper 
course ;  whether  the  kind  of  reciprocity  the  occasion  called  for 
was  shown  or  not,  and  whether  Chapman  was  bound  or  not  to 
be  satisfied  of  the  rectitude  of  Pierson's  claim  when  the  suit  was 

begun. 

Whether  as  between  the  parties  and  in  view  of  all  the  con- 
siderations bearing  on  their  rights  and   duties,  and  on  the  con- 
veniences  and  inconveniences  of  identification  growing  out  of 
the  nature  of  the  property,  and  bearing  on  the  chances  for  im- 
position, and  on  the  fact  of  Chapman's  being  liable  to  account 
to  whoever  should  at  last  be  found  to  be  actual  owner,  it  was 
reasonably  and  fairly  due  to  Pierson  to  have  a  personal  inspec- 
tion to  enable  him  to  say  that  the  pin  was,  or  was  not,  his  prop- 
erty, and  if  he  thought  it  was,  then  to  facilitate  his  proof,  was 
not  a  matter  of  law.     It  depended  on  the  peculiarities  of  the 
case,  and  was  a  question  for  the  jury  under  instructions  conform- 
ing to  the  principles  here  explained. 

For  the  purpose  of  judging  with  what  propriety  the  parties 
acted,  and  whether  Chapman  was   guilty  of    legal   fault,  the 
transaction  must  be  contemplated  as  it  was  on  the  thirtieth  of  July 
when  the  action  commenced.     It  is  necessary  to  keep  in  mind 
what  time  had  then  been  taken,  and  what  had  been  done  about 
identifying  the  pin,  and  what  evidence  Chapman  had  of  the 
validity    of  Pierson's  claim.     That  satisfactory  evidence  was 
procured   afterward   by  Chapman  must  not  be  taken   to  show 
that  he  had  fair  and  reasonable  evidence  before,  or  that  his  prior 
conduct  was  unjust.     In  considering  this  aspect  of  the  contro- 
versy, it  is  necessary  to  confine  attention  to  the  facts  and  appear- 
ances manifested  up  to  the  time  the  writ  was  taken  out.     The 
question  was  then  pending  and  unsettled. 

The  contention  touching  the  riglit  of  action  in  the  absence  of 
any  tender  of  the  reward  is  of  no  practical  importance  on  this 
record.  Whether  in  point  of  fact  Chapman  waived  or  aban- 
doned the  reward  itself,  would  be  a  question  for  the  jury  under 
proper  instructions.     Inasmuch   as   it  belonged   to  Pierson  to 


Ml 


RTY. 

ights  and 
injustice, 
hcse  and 
e  conduct 
the-wise ; 
le  proper 
called  for 
I  or  not  to 
e  suit  was 

I  the  cou- 
rt the  con- 
ing out  of 
es  for  im- 
to  account 
ner,  it  was 
lal  inspec- 
t,  his  prop- 
proof,  was 
ties  of  the 
IS  conform- 

the  parties 
fault,  the 
:ieth  of  July 
;ep  in  mind 
done  about 
had  of  the 
idence  was 
jn   to  show 
lat  his  prior 
the  contro- 
and  appear- 
out.     The 

;  absence  of 
ance  on  this 
:d  or  aban- 
e  jury  under 
(  Pierson  to 


WOOD    V.    PIERSON. 


199 


identify  the  property,  and  pay  the  reward  too,  it  is  not  reason  - 
able  to  contend  that,  because  Chapman  insisted  on  the  identifi- 
cation, he  therefore  waived  the  reward.  The  exaction  of  the 
first,  or  even  a  firm  stand  on  every  legal  advantage  concerning 
identification,  would  not  imply  relinquishment  of  the  other. 
Unless  the  reward  itself  was  in  fact  waived,  or  there  was  such 
behavior  on  the  part  of  Chapman  respecting  Pierson's  reclama- 
tion as  was  tantamount  to  a  denial  of  Pierson's  right  and  a 
wrongful  detention,  it  is  not  perceived  that  there  was  any  ground 
for  holding  that  the  lien  was  forfeited. 

In  Isaack  v.  Clark,  3  Bulst.  306,  Lord  Coke  states  the  law  in 
this  wise:  "When  a  man  doth  finde  goods,  it  hath  been  said, 
and  so  commonly  held,  that  if  he  doth  dispossess  himself  of 
them,  by  this  he  shall  be  discharged  ;  but  this  is  not  so,  as  appears 
by  12  E.  IV.,  fol.  13,  for  he  which  findcs  goods  is  bound  to 
answer  him  for  them  who  hath  the  property ;  and  if  he  deliver 
them  over  to  any  one,  unless  it  be  unto  the  right  owner,  he  shall 
be  charged  for  them,  for  at  the  first  it  is  in  his  election  whether 
he  will  take  them  or  not  into  his  custody,  but  when  he  hath 
them,  one  onely  hath  then  right  unto  them,  and,  therefore,  he 
ought  to  keep  them  safely ;  if  a  man,  therefore,  which  findes 
goods,  if  he  be  wise,  he  will  then  search  out  the  right  owner  of 
them,  and  so  deliver  them  unto  him ;  if  the  owner  comes  unto 
him  and  demands  them,  and  he  answers  him,  that  it  is  not  known 
unto  him  whether  he  be  the  true  owner  of  the  goods  or  not,  and 
for  this  cause  he  refuseth  to  deliver  them,  this  refusal  is  no  con- 
version, if  he  do  keep  them  for  him." 

Lord  Coke  very  clearly  enforces  the  right  and  duty  of  the 
finder  to  be  certain  of  the  true  owner  before  he  makes  delivery. 
As  he  is  bound  to  hold  for  the  true  owner,  and  is  liable  in  case 
of  misdelivery,  the  law  makes  it  his  duty  as  well  as  his  right, 
even  when  there  is  no  reward,  to  "search  out,"  or,  in  other 
language,  find  the  "right  owner,"  or  see  to  it  that  he  submits 
to  no  other  than  the  "right  owner."  Undoubtedly  if  Chapman's 
conduct  was  such  that  a  jury  would,  under  the  circumstances  of 
the  case,  feel  satisfied  that  he  was  actually  perverse  and  unrea- 
sonable, and  pursued  a  course  which  was  adopted  to  baffle  fair 
investigation,  instead  of  maintaining  the  attitude  of  a  man  whose 
duty  it  was,  in  the  quaint  terms  of  Lord  Coke,  to  "search  out 
the  right  owner,"  it  would  be  just  to  regard  him  as  having 
retained  the  property  unlawfully. 


200 


MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROl'EUTV. 


The  neglect  to  tender  the  reward,  if  it  was  still  claimed, 
could  not  defeat  the  action.     Bancroft  v.  Peters,  4  Mich.  6.9. 
The  remedy  of  trover  was  originally  given  to  enable  the  loser 
of  roods  to  recover  of  the  finder,  and  the   principle  has    ound 
recognition  in  one  of  the  provisions  of  our   action  of  replevm. 
Comp.  L.,  sec.  6754.     The   statute  expressly  refers  to  a  case 
.^.here  one  party  is  found  to  have  a  lien,  and  the  other  the  genera 
ownership,  and  the  court  is  required  to  render  such  judgment 
as  shall  be  just.     The  provision  did  not  escape  the  attention  of 
the  court  below.     It  was  mentioned  in  the  charge.     The  parties 
respectively   ignored  the   statute  concerning  lost  property  and 
planted  themselves  on  the  common  law,  and  hence  there  seems 
to  be  no  occasion  to  notice  the  former. 

The  charge  given  by  the  learned  judge  was  very  elaborate. 
In  some  essential  particulars  it  seems  open  to  a  construction 
not  consistent  with  the  views  which  are  here  explained.  But  it 
is  not  needful  to  specify  the  observation  referred  to. 

It  is  enough  to  say  now,  that  whatever  may  have  been  intended, 
the  charge  as  we  find  it  in  the  record  must  have  been  received 
by  the  jury  as  instructing  them  that  the  defendants  were  bound 
to  submit  the  pin  to  the  personal  inspection  of  the  plaintiff 
on  his  request,  as  a  safe  and  proper  expedient  for  the  purpose 
of  "searching  out  the  right  owner,"  and  they  could  not  have 
supposed  that  it  was  submitted  to  them  to  decide  acccording  to 
their  own  judgment  of  the  circumstances  whether  the  defendants 
ought  or  ought  not  to  have  allowed  such  inspection.  The  ques- 
tion was  not  for  the  bench,  but  for  the  jury   under  suitable 

instructions.  . 

The  case  has  several  features  which  demand  a  very  strict 
adherence  to  the  rule  which  restricts  the  province  of  the  judge 
to  the  conveyance  of  such  matters  of  law  to  the  jury  as  the  case 
calls  for,  and  assigns  to  the  jury  the  determination  of  all  matters  of 
fact.  No  doubt  the  unusual,  if  not  unprecedented  characteristics 
of  the  litigation,  and  the  ordinary  hurry  of  a  trial,  may  explain 
all  of  the  incidents  which  on  careful  review  appear  to  be  incapa- 
ble of  support.  , 

The  result  reached  is  that  the  judgment  must  be  reversed  with 

costs,  and  a  new  trial  granted. 
See  note  to  next  case. 


Mi 


TY. 


MODES  OK  OBTAINING  TITLE  TO  PERSONAL  PROPERTY.       20I 


laimed , 
:h.  619. 
he  loser 
IS  found 
eplevin. 
)  a  case 
:  general 
idgment 
:ntion  of 
e  parties 
erty  and 
re  seems 

labor  ate. 
struction 
.     But  it 

intended, 

received 

tie  bound 

plaintiff 

purpose 

not  have 

ording  to 

efendants 

rhe  ques- 

r  suitable 

'ery  strict 
the  judge 
ts  the  case 
matters  of 
acteristics 
ay  explain 
be  incapa- 

■ersed  with 


§  43.    Finder's  lien  for  offered  reward. 

WENTWORTH  v.  DAY. 

[3  Mete.  352.] 

Supreme  Judicial  Court  of  Massachusetts,  1841. 

Shaw,  C  J.— Although  the  finder  of  lost  property  on  land  has 
no  right  of  salvage  at  common  law,  yet  if  the  loser  of  property, 
in  order  to  stimulate  the  vigilance  and  industry  of  others  to 
find  and  restore  it,  will  make  an  express  promise  of  a  reward, 
either  to  a  particular  person,  or  in  general  terms,  to  any  one 
who  will  return  it  to  him,  and  in  consequence  of  such  offer 
one  does  return  it  to  him,  it  is  a  valid  contract.  Until  something 
is  done  in  pursuance  of  i! ,  it  is  a  mere  offer,  and  may  be 
revoked.  But  if,  before  it  is  retracted,  one  so  far  complies  with 
it  as  to  perform  the  labor  for  which  the  reward  is  stipulated,  it 
is  the  ordinary  case  of  labor  donp  on  request,  and  becomes  a 
contract  to  pay  the  stipulated  compensation.  It  is  not  a  gratui- 
tous service,  because  something  was  done  which  the  party  was 
not  bound  to  do,  and  without  such  offer  might  not  have  done. 
Symmes  v.  Frazier,  6  Mass.  344. 

But  the  more  material  question  is  whether,  under  this  offer 
of  reward,  t'ne  finder  of  the  defendant's  watch,  or  the  father, 
who  acted  in  his  behalf  and  stood  in  his  right,  had  a  lien  on 
the  watch,  so  that  he  was  not  bound  to  deliver  it  till  the  reward 

was  paid. 

A  lien  may  be  given  by  express  contract,  or  it  may  be 
implied  from  general  custom,  from  the  usage  of  particular  trades, 
from  the  course  of  dealing  between  the  particular  parties  to  the 
transaction,  or  from  the  relations  in  which  they  stand,  as  prin- 
cipal and  factor.  Green  v.  Farmer,  4  Bur.  2221.  In  Kirkman 
v.  Shawcross,  6  T.  R.  14,  it  was  held  that  where  certain  dyers 
gave  general  notice  to  their  customers  that  on  all  goods  received 
for  dyeing  after  such  notice  they  would  have  a  lien  for  their 
general  balance,  a  customer  dealing  with  such  dyers  after  notice 
of  such  terms  must  be  taken  to  have  assented  to  them,  and 
thereby  the  goods  became  charged  with  such  lien  by  force  of 
the  mutual  agreement.       But   in  many  cases  the  law  implies  a 


203       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPEUTV. 

lien  from  the  presumed  intention  of  the   parties   arising  from 
he  relation  in  which  they  stand.      Take  the   ordn.ary  case  oj 
e  sde  of  goods,  in  a  shop  or  other  place,  .here  the  part.es 
are  s  rangefs  to  each  other.       By  the  contract  of  sale  the  prop- 
ey      considered  as  vesting  in  the  vendee ;  but  the  vendor  has 
a  iL  on  the  property  for  the  price,  and  is  not  boun    to  d  h 
it  till  the  price  is  paid.      Nor  is  the  purchaser  bound  to  pay     U 
h    goods  are  delivered.      They  are  acts  to  be  done    mutually 
Ind'simultaneously.     This  is  founded  on  the  legal  l-sumpt-o 
that  it  was  not  the  intention  of  the    vendor  to  part  w.th  hs 
g  ods  till  the  price  should  be  paid,  nor  that  of  the  P-^- J.^ 
part  with  his  money  till  he  should  recewe  the  goods.  t  ti> , 

nresumption  may  be  controlled  by  evidence  provmg  a  d.ffe.ent. 
fntenTS  that  thi  buyer  shall  have  credit  or  the  seller  be  pa.d  m 

something  other  than  money.  ,  .    .^   ,  ,u^  «.;„„. 

In  the  present  case  the  duty  of  the  phunt.ff   to  pay  the  st  pu- 
Hted  rJ^vd  arises  from  the  promise  contained  in  h.s  advertise- 
r^ent      That  promise  was  that  whoever  should  return  h>s  wa  ch 
Zt  prnting  office  should  receive  twenty  dollars.      No  other 
im    or'pa      Of  payment  was  fixed.      The  natural  if  not  t  e 
ecessary  implicrtion  is  that  the  acts  of  performance  were  to 
be^u  ual  and  simultaneous;  the  one  to  give  up  the  watch  on 
plyTent  of  the  reward,  the  other  to  pay  the  reward  on  rece>v- 
LThe  watch.      Such  being,  in  our  judgment,  the  nature  and 
Wa  leff  ct  of  this  contract,  we  are  of  opinion  that  the   defend- 
ant on  being  ready  to  deliver  up  the  watch  had  a  right  to  receive 
the  r  ward  fn  behalf  of  himself  and  his  son,  and  was  not  bound 
o  sur  luler  the  actual  possession  of  it  till  the  reward  was  paid; 
rndHherefore,  a  refusal  to  deliver  it  without  such  payment  was 

"1t^rc:::;^e.nt  for  the  loser  of  the  watch  to  propose  his 
own  terms       He  might  have  promised  to  pay  the  reward  at  a 
Xen  t  -    after  the  watch   should  have  been  restored,  or  m  any 
The     manner  inconsistent  with  a   lien  for  the  reward  on  the 
a  tide  restored,  in  which  case  no  such  lien  would  exist.       The 
pe    on  "storing  the    watch  would   look  only   to  the  personal 
fespo-  b  lity  oi  the  advertiser.     It  was  for  the  latter  to  consider 
wiri^I    s  ch  an  offer  would  be  equally  efficacious  in  bringing 
Wk  h  s   lost  property  as  an  offer  of  a  reward  secured  by  a 
p  edge  of  the  property  itself;  or    whether,  on  the   contrary,  .t 


im 


WENTWORTH    V.    DAY. 


203 


would  not  afford  to  the  finder  a  strong  temptation  to  conceal  it. 
With  these  motives  before  him  he  made  an  offer  to  pay  the 
reward  on  the  restoration  of  the  watch;  and  his  subsequent 
attempt  to  get  the  watch  without  performing  his  promise  is 
equally  inconsistent  with  the  rules   of   law  and  the  dictates  of 

justice. 

The  circumstance  in  this  case  that  the  watch  was  found  by 
the  defendant's  son,  and  by  him  delivered  to  his  father,  makes 
no  difference.'  Had  the  promise  been  to  pay  the  finder,  and 
the  suit  was  brought  to  recover  the  reward,  it  would  present 
a  different  question.  Here  the  son  delivered  the  watch  to  the 
father,  and  authorized  the  father  to  receive  the  reward  for  him. 
If  the  son  had  a  right  to  detain  it,  the  father  had  the  same 
jight,  and  his  refusal  to  deliver  it  to  the  owner  without  pay- 
ment of  the  reward  was  no  conversion. 

Judgment  for  the  defendant. 

Consult— Wood  v.  Plerson,  45  Mich.  313;  Cummings  v.  Gann,  52 
Pa.  St.  484;  Prescott  v.  Neale,  12  Gray,  272;  Wilson  v.  Guyton,  8  Gill, 
213;  Amory  v.  Flyn,  10  Johns.  loi,  6  Am.  Dec.  316;  Baker  v.  Hoag, 
3  Barb.  203,  7  Id.  I13;  Janvrin  v.  Exeter,  48  N.  H.  83;  Fitch  v.  Snede- 
ker,  38N.  Y.  248;  Symmes  v.  Frazier,  6  Mass.  344,4  Am.  Dec.  142; 
Deslondes  v.  Wilson,  5  La.  397,  25  Am.  Dec.  187. 


304      MODES  OK   OBTAINING  TITLE  TO  PERSONAL  rUOPERTV. 

(n)       ACCESSION. 

§  44.    Products  connected  with  real  estate-Bmblementa. 
HENDERSON  v.  CARDWELL,  ante,  p.  SS. 


§  45.    Products  connected  with  personal  estate. 
When  new  product  arise8.-The  young  of  animals. 
KELLOGG  V.  LOVELY. 

[46  Mich.  131.] 
Supreme  Court  of  Michigan,  1878. 

Graves,  J.-The  circumstances  of  this   controversy  are  as 

follows:  In  October,  1878,  the   defendant   (Lovely)    sold   the 

plaintiff  (Kelloss)  on  credit  a  mare,  buggy,  and  harness   tor 

he  a-reed  price  of  $250,  and  the  plaintiff  gave   h.s  note,    to- 

gether  with  a  mortgage  on  the  property,  for  tho  ent.re  sum. 

The  mare  was  with  foal,  and  about  the  first  of  June  followmg 
she  dropped  the  colt.     On  the  first  of   July   the  mortg.nge   be- 
came due,  and,  Kellogg  failing  to  pay.  Lovely  proceeded  to  t.-ike 
the  propei-ty.     There  was  no  dispute  about  his  right  to  take  tlie 
mare,  buggv,  and  harness,  but  the  parties  appear  to  have    dif- 
ered  about  the  colt.     Lovely   maintained    that   the    mortgage 
applied  to  it,  and  gave  him  the  same  right  to  the  co  t  tha    it  did 
ti  the  mare,  but  Kellogg  contested   this   claim  and  contended 
that  the  colt,  being  the  offspring  of  the  mare,  was  h.s  property 
.„Kl  not  having  been  born  when  the   mare  was   purchased   and 
ihe  mortgage  given,  was  not  subject  to  the  mortgage. 

The  colt  had  not  been  weaned  and  was  running  with  the 
„,are,  and  when  Lovely  drove  her  off  the  colt  followed.  Lovely 
soon  afterward  proceeded  to  sell  the  whole  property,  he  colt 
included,  under  the  mortgage,  and  we  gather  ^-m  rt.e  ase 
that  it  was  bought  in  by  him  through  an  agent.  The  whole 
sum  for  which  the  property  was  struck  off  was  $176,  and  short- 
ly afterward  Kellogg  paid  the  remainder  of  the  debt.  He 
then  instituted  replevin  against  Lovely,  before  a  ]ust.ce  of   the 


^M 


KELLOGG    V.    LOVELY. 


peace,  to  obtain  the  colt,  and  it  was  seized  on  the  writ  and  de- 
livered into  his  possession.  The  justice  entered  a  nonsuit 
against  him,  and  Lovely  vvaivin^j  return  of  the  colt,  the  value 
was  assessed  at  $55,  for  which  Lovely  took  judgment.  An 
appeal  was  made,  and  the  circuit  court  reduced  the  assessment 
to  $30,  and  awarded  Kellogg  $78  costs,  and  extinguished  the 
former  by  applying  an  equal  amount  of  the  latter  by  way  of 
set-off.  Thereupon  Kellogg  sold  the  colt  and  brought  this  action 
of  trespass,  counting  on  the  transaction  when  Lovely  took  the 
mare  on  the  mortgage.  The  justice  gave  judgment  in  Kel- 
1()"(t's  favor  for  the  value  of  the  colt,  and  Lovely  appealed. 
The  circuit  judge  ruled  that  there  was  no  evidence  of  trespass 
and  ordered  a  verdict  for  Lovely.  It  is  not  certain  that  the 
circuit  judge  was  correct  in  the  reason  on  which  he  proceeded. 
But  whether  he  was  so  or  not  is  unimportant  unless   the  resuU 

was  wrong. 

The  fundamental  question  in  the  case  relates  to  the  effect  on 
the  legal  ownership  of  the  colt,  of  the  sale  of  the  mare  to  Kel- 
logg and  the  mortgage  back. 

Li  respect  to  tame  and  domestic  animals,  the  general  rule  is 
well  understood,  that  "the  brood  belongs  to  the  owner  of  the 
dam  or  mother"  (2  Bl.  Com.  390),  but  there  are  many  cases  in 
which  the  rule  is  qualified  in  its  application.  It  has  been  held, 
and  may  be  true  in  special  cases,  that  where  the  female  is  hired 
for  a  time  limited,  and  has  increased  during  the  term,  the  hirer 
will  be  entitled  to  it  and  not  the  general  owner.  3  Kent,  361  ; 
Edw.  Bail.,  sec.  403;  Putnam  v.  VVylcy,  8 Johns.  433;  Concklin 
v.  Havens,  13  Johns.  314 ;  Hanson  v.  Millett,  55  Me.  184; 
Stewart  v.  Ball,  33  Mo.  154.  And  so,  too,  it  was  decided  in  Lin- 
nendoll  v.  Terhune,  that  a  foal  obtained  under  an  agreement,  by 
which  the  owner  of  the  mare  arranged  with  another  person,  that 
if  he  would  put  her  to  horse  and  pay  the  expense  he  should  have 
the  foal,  became  the  property  of  such  persons.  4  Johns.  333. 

It  is  also  laid  down  by  Judge  Story  that  where  a  thing  is 
pledged  its  natural  increase  as  accessory  is  also  pledged,  and 
he  gives  by  way  of  illustration  the  case  where  a  flock  of  sheep 
are  pledged,  and  observes  that  the  young  afterward  born  are 
also  pledged.  Bailments,  sec.  292;  and  see  Domat,  part  i,book 
3,  tit.  I,  sec.  I,  art.  7;  Kaufm.  Mackeldey,  book  i,  sec.  367. 
In  Iowa  and  Kentucky,  and  probably  in  other  states,  it  has  been 


2„6       MODES  OF  OBTAINING  TlT.-i:  TO  PERSONAL  rnoPEUTV. 

decided  that  the  young  of  animals  under  mortKasc  ^'e  subject 
to  the  mortgage.  Forman  v.  Proctor,  9  B.  Mon.  124;  lho,pc 
V.  Cowles,  5S  loNva,  40S.  And  no  cases  to  the  contrary  have 
been  discovered.  Perhaps  these  h,st  decisions  may  have  orig- 
inated in  the  doctrine  that  the  mortgagee  of  chattels  .sthe  .egal 
owner,  and  the  courts  may  have  considered  that  m  holdu.g 
the  young  of  mortgaged  animals  to  be  subject  to  the  mortgage 
thev  were  only  applying  the  general  rule  which  assigns  the  in- 
crease to  the  owner  of  the  mother.     But  it  is  useless  to   specu- 

late  on  the  subject. 

The   case  before  the  court  belongs  to  a  peculiar  and  excep- 
tional  class,  and  it  may  be  disposed  of  without   bringing    into 
Cuestion  the  general  doctrine.     As  previously  stated    the  mare 
was  carrying  her  colt  when  Lovely  sold  her,   and   the  plaintiff 
not  paying  anything  whatever,  gave  back  at  the  same   momen 
a  ch^Utd  mortgage  for  the  entire  price,     l^l^ere  -s  no  m  e 
of  time  between  the  sale  and  mortgage.     Each   took   effect  at 
the  same  instant.     The  whole  was  substantially  one  transaction. 
Now   it   is    a  rule  of  natural  justice  that   one  who    has    gotten 
the  property  of  another  ought  not,  as  between  them,  to  be  allow- 
ed to  keep  any  part  of  its  present  natural  incidents  or  accessories 
^■ithout  payment,  and  that  the  party   entitled    should  have  the 
richt  to  regard  the  whole  as  being  subject   to  his   claim      Ihe 
oite  ought  not  to  suffer  loss,  nor  the  other  effect  a  gain,  through 
a  mere  shuffle,  and  whatever  fairly  belongs  to  the  thing  m  ques- 
tion,  as  the  young  the  dam  is  carrying  belongs  to  her,  ought  to 
be  as  fullv  bound  as  the  thing  itself,  unless,  indeed,   there    are 
circumstances  which  imply  a  different  intention. 

It  is  not  unreasonable  to  construe  the  acts  of  these  P-'^'"  '^s  by 
these  principles,  and  to   consider  that  when    Lovely   sold    the 
n.are  without  receiving  anything  down,  and  Kellogg  gave  back 
the  mortgage  for  the  whole  purchase  price  to  be  due  before  the 
colt,  according  to  the  ordinary  course  of  things,  would  be    old 
enough  to  be  separated  from  the  mare,  it  operated    as  ^vell   to 
hoUUhe  colt  as  to  hold  the  mare  herself.     The  intendment   ,s 
^  fair  and  just  one,  that  the  security  was  to  be  so  far  beneficial 
to  Lovely  as  to  preserve  to  him  the  right  to  claim    at   the   ma- 
turity  of  the  mortgage  the  same  property  he   would   have  had 
in  case  he  had  made  no  sale.     According  to   this  view,    there 
was  the  same  right  to  the  colt   as  to  the  mare,  and  the  act  of 


*ii 


TY. 


OREOUUY    V.     STKYKKH. 


207 


subject 
Thorpe 
•y  have 
•e  orig- 
\\e  legal 

holding 
ortgage, 

the  in- 
)   specu- 

A  excep- 
ing    into 
he  mare 
plaintiff, 
moment 
)  interval 
effect  at 
msaction. 
IS    gotten 
be  allow- 
ccessories 
have  the 
im.     The 
I,  through 
g  in  ques- 
',  ought  to 
there    are 

parties  by 
sold    the 
gave  back 
before  the 
lid  be    old 
as  well   to 
ndment   is 
•  beneficial 
t   the   ma- 
have   had 
iew,    there 
the  act  of 


seizure  sued  for  was  not  a  trespass.  The  result  ordered  by  the 
circuit  judge  was  therefore  correct,  and  tlie  judgment  must  be 
aHirmed  with  costs. 

Consult— Lewis  V.  Davis,  3  Mo,  133,  23  Am.  Dec.  678;  Stewart  v. 
Hull,  33  Mo.  154  ;  Putnam  v.  Wvley,  8  Johns.  432 ;  Concklin  v.  lliivens, 
12  Johns.  314;  llnsbrouck  v.  Bouton,  60  Barb.  413;  Groat  v.  Gile,  51  N. 
Y.  431;  Elmore  v.  Fltzpatrick,  56  Ala.  400;  Hull  v.  Hull,  48  Conn.  250; 
Buckmaster  v.  Smith,  22  Vt.  203;  Mazelbaker  v.  Goodfcllow,  64  111.  238; 
Hanson  V.  ISIillett,  55  Me.  184;  Orser  v.  Storms,  9  Cow.  687,  iS  Am. 
Dec.  543;  Winter  V.  Landphere,  43  la.  471;  White  v.  Storms,  21  Mo. 
(App.)  2S8. 


§   46.    Where    addition    is  made  to  old    product— With 

owner's  consent. 

GREGORY  V.  STRYKER. 

[2  Denio,  628.] 

Supreme  Court  of  New  Tork,  1846. 

Beaudsley,  J. — The  principal  controversy  in  this  cause  is 
whether  the  wagon  in  question  when  taken  by  the  defendant 
belonged  to  the  plaintiff  or  to  Rose.  The  other  points  were 
disposed  of  by  the  jury  under  proper  instructions  from  the 
court. 

As  the  value  of  the  new  materials  and  labor  used  and  em- 
ployed in  repairing  or  reconstructing  the  wagon  greatly 
exceeded  that  of  the  old  materials  used  in  the  operation,  it 
was  urged  that  this  was  really  a  contract  with  Rose  to  make  a 
new  wagon,  and  not  for  the  repair  of  an  old  one,  and  there- 
fore, as  most  of  the  materials  were  furnished  by  him,  his  right 
of  property  in  the  vehicle  would  continue  until  its  completion 
and  delivery  under  the  contract. 

No  doubt,  where  a  manufacturer  or  mechanic  agrees  to  con- 
struct a  particular  article  out  of  his  own  materials,  or  out  of 
materials  the  principal  part  of  which  are  his  own,  the  property 
of  the  article,  until  its  completion  and  delivery,  is  in  him  and 
not  in  the  person  for  whom  it  was  intended  to  be  made. 
1  Cowen's  Tr.  [2d  ed.]  2S9;  2  Kent,  361 ;  Merritt  v.  Johnson, 
7  Johns.  473;   I  Chitt.  PI.  [7  Am.  ed.]  3S1 ;  Atkinson  v.  Bell, 


i 


208      MODES  ()!•  OIlTAINlNfi   mi.E  TO  PKIISOSAL  rKDl'lUtTY. 

8  Barn.  iSc  Cress.  377;  2  Chitt.  Com.  Law,  370.  lUit  it  is 
cciually  clear,  as  a  j,'eiicral  proposition,  that  vviiere  tlie  owner 
of  ii  (lanianeil  or  worn-out  article  .lelivers  it  to  anotlier  person 
to  l.e  repaired  and  renovated  l.y  the  Uxhov  and  materials  of  the 
latter,  the  pr.^perty  in  the  article,  as  thus  repaired  and  im- 
proved,  is  all  along  in  the  original  owner,  for  whom  the 
repairs  were  made,  and  not  in  the  person  making  them.  The 
agreement  in  such  case  is  but  an  everyday  contract  of  bail- 
ment—/(>aj//o  opens  facicmii.  Story  on  Dl.  [,^1  ed.],  sections 
431,  433,  a;  3  Kent,  5SS.  And  the  original  owner,  so  far  from 
losing  his  general  property  in  the  thing  thus  placed  in  the  hands 
of  another  person  to  be  repaired,  ac.  ires  the  right  to  whatever 
accessorial  additions  are  made  in  bringing  it  to  its  new  and 
improved  condition. 

Nor  am  I  aware  that  in  this  class  of  cases  it  is  at  all  im- 
portant what   the  value  of  the  repairs,  actual  or  comparative, 
may  be.     No  case   is  referred   to  which  proceeds  on  that  dis- 
tinction, nor  anv  writer  by  whom  it  is  adverted  to  as  material. 
If  we   adopt   this  distinction,    ivhat   shall   be   its  limit?     The 
general  property  must  be  in  one  party  to  the  exclusion  of  the 
other,  for  surely  they  are  not  tenants  in  common  in  the  thmg 
repaired.     Shall  we  then   say  that  where  the  value  of  the  re- 
pairs falls  below  that  of  the  dilapidated   article  on  which  they 
were  made,  the   original  owner  has  title  to  the  article  in    its 
improved   condition,    and,   vice  versa,  where  they  exceed  it  in 
value,  title  to  the  article,  as  repaired  and  improved,  passes  over 
to  the  person  by  whom  the  repairs  were  made  ?     Such  a  rule 
would  certainly  be  plain  enough,  and  probably  might  be  applied, 
without  great   difficulty,  to  any   particular  case.     But  it  would 
be  found  to  give  rise  to  a  variety  of  questions  never  heard  of 
in  actions  growing  out  of  the  reparation  of  decayed  or  injured 
articles;  and  the  rule  itself,  I  .m  persuaded,  has  not  so  much 
as    the   shadow  of    authorit)'     .or  its  support.     There    are    a 
multitude  of  instances  ir  v/iii  /h  the  expense  of   propt.   repairs 
greatly  exceeds  the  value  of  the  article  on  which  they  are  made. 
It  is  so  in  the  lowly  operation   of  footing  an  old  pair  of  boots, 
and  not   unfrequently  in   repairing   a   broken-down    carriage. 
The  principle  contended  for  by  the   defendant  is  not  necessary 
for  the  security  of  the  mechanic  by  whom  the  repairs  are  made. 
He  has  a   lien  for  his  labor   and   materials,   and   may    retain 


IITY. 


onEoonv  v.  stuykeh. 


209 


Hut  it  is 
le  owiKT 
:r  person 
;ils  of  the 

and  im- 
hom  the 
in.     The 

of  bail- 
,  sections 
)  far  from 
the  hands 
whatever 
new   and 

U  all  im- 
iparative, 
,  that  dis- 

material. 
lit?  The 
on  of  the 

the  thing 
of  the  rc- 
k'hich  they 
icle  in  its 
<cccd  it  in 
lasses  over 
uch  a  rule 
le  applied, 
it  it  would 
r  heard  of 

or  injured 
)t  so  much 
ere  are  a 
Dt^   repairs 

are  made. 
ir  of  boots, 
I  carriage, 
t  necessary 
;  are  made, 
nay    retain 


possession  until  his  just  demands  are  satisfied.  Story  on  Rl., 
section  4.|o:  Cross'  Law  of  Lion,  331,  chapter  31;  Chitt.  on 
font.  [5th  Am.  ed.]  544,5;  i  Cowen's  Tr.  295 ;  Moore  v. 
Hitchcock,  4  Wend.  393;  Grinnell  v.  Cook,  3  Hill,  491.  This 
affords  ample  protection  to  the  mechanic.  And  who,  let  me 
ask,  ever  heard  that  his  lien  uj-  limited  to  repairs  which,  in 
value,  fall  below  that  of  the  original  article  on  which  they  are 
made?  Yet  this  limitation  must  necessarily  exist,  if  the  ground 
assumed  by  the  counsel  for  the  defendant  is  well  taken. 

Various  rases  have  arisen  in  which  property  in  a  raw  state 
was  delivered  by  one  person  to  anotiier  upon  an  agreement 
that  it  should  be  wrought  upon  and  improved  by  the  labor  and 
skill  of  the  bailee,  and  when  thus  improved  in  value  should 
be  divided  in  certain  proportions  between  the  respective  parties ; 
and  in  which  it  was  held  that  the  original  owner  retained  his 
exclusive  title  to  the  property  until  the  contract  had  been 
completely  executed;  and  this,  notwithstanding  the  labor  to  be 
performed  by  the  bailee  might  be  equal  or  even  greater  in 
value  than  that  of  the  property  when  received  by  him.  Thus, 
in  Pierce  v.  Schenck,  3  Hill,  28,  where  logs  were  delivered  at 
a  sawmill,  under  a  contract  with  the  miller  that  he  should  saw 
tiem  into  boards  and  each  party  should  have  one  half,  it  was 
held  to  be  a  bailment  and  not  a  sale  of  the  logs,  and  that  the 
bailor  retained  his  general  property  until  the  contract  was 
fully  executed.  The  cases  of  Barker  v.  Roberts,  8  Greenl.  loi, 
and  Rightmyer  v.  Raymond,  la  Wend.  51,  as  well  as  many 
others  are  to  the  same  effect.  To  be  sure,  these  are  not  cases 
in  which  old  articles  were  to  be  improved  by  repairs  put  upon 
them;  yet  the  bailment  in  each  is  of  the  same  nature  and  class, 
locatio  operis  facicndi ;  and  as  to  this  question  the  same  prin- 
ciple should  apply  to  both. 

If  I  employ  a  mechanic  to  make  a  new  article  for  me,  the 
right  of  property  while  the  work  is  going  on  may  essentially 
depend  upon  the  original  ownership  of  the  materials  used  in 
its  construction.  If  they  are  his,  or  chiefly  his,  we  have  seen 
that  the  property  remains  in  him.  If,  on  the  other  hand,  the 
materials  used  were  mine,  the  general  property  is  in  me, 
although  he  may  add  some  small  proportion  of  his  own 
materials.    Story  on  Bl.,  section  423;  i  Cowen's  Tr.  3S9.   The 

14 


2IO      MODES  OF  OBTAINING  TITLE  TO  PERSONA'    rr.CPERTY. 

distinction  between  these  cases  is,  that  the  first  is  a  contract  for 
the  sale  of  the  article  K^futuro,  the  latter  a  pure  bailment. 

It  %vas  not  pretended  that  the  real  design  of  the  planit.ff  and 
Rose  was  to  have  a  new  wagon  made  in  the  name  of  repanmg 
an  old  one,  and  that  such  a  trick  was  r-sorted  to  as  a  mode  of 
placing  the    property  in  the   vehicle,  while  being   constructed, 
beyond  tl  e  reach  of  the  creditors  of  Rose.     We  must  assume 
that  these  parties  acted   with   fairness   and    meant   what   they 
said;   that  the  real  object  was  as  expressed,  to  repair  an  old 
wagon,  and  not  to  make  a  new  one,  although  it  must  be  admit- 
ted that  the  process  of  reparation  has   resulted  in  a  substantial 
reconstruction  of  the  vehicle.    Still  the  contract  was  for  repairs, 
and  not  for  a  new   wagon,  which   as  between  the  parties  to  the 
contract  should    determine   their   rights.     And  as  the  contract 
was  fair  and  free  from  fraud,  the   defendant,  who  stands  in  the 
place  of  the  creditors  of  Rose,  must  abide  by  his  rights.     As 
between  the  plaintiff  and  Rose  the  property  was  in  the  former, 
and  his  right  is  the  same  against  this  defendant.     No  error  of 
law,  therefore,  occurred  on  the  trial  of  the  cause. 

Judgment  affirmed. 

CONSULT-Eaton  v.  Lynde,  15  M«ss.  242;  Merritt  v.  Johnson,  7  Johns. 
473,  5  Am.  Dec.  2S9;  Rightmyer  v.  Raymond,  12  Wend.  5i;  P'erce 
;  Schenck,  3  Hill,  ^8;  Barker  v.  Roberts,  8  Me.  101 ,  Aborn  v.  Mason 
,4  Blatchf.  405;  Hyde  v.  Cookson,  2x  Barb.  9^-;  Foster  v.  Pet t.bone. 
7  N.  Y.  433;  Babcock  v.  Gill,  10  Johns.  257;  Eaton  v.  Munroe,  52  Me. 
63;  Wright  V.  O'Brien,  5  Daly,  54- 


§  47.    Same— Without  owner's  consent. 

ISLE  ROY  ALE  MINING  CO.  v.  HERTIN. 

[37  Mich.  332.] 

Supreme  Court  of  Michigan,  1877. 

CooLEY,  C.  J.— The  parties  to  this  suit  were  owners  of  ad- 
joining traits  of  timber  land.  In  the  winter  of  1S73-4  defend- 
ants in  error,  who  were  plaintiffs  in  the  court  below,  in  con- 
sequence of  a  mistake  respecting  the  actual  location,  went  upon 
the  lands  of  the  mining  company  and  cut  a  quantity  of  cord 
wood,  which  they  hauled  and  piled  on  the  bank  of  Portage 
Lake.     The  next  spring  the  wood  was  taken  possession  of  by 


Ml 


i-r.CfERTY. 


ISLE    ROYALE    MINING    CO.    V.    HERTIN. 


211 


s  a  contract  for 
;  bailment, 
he  plaintiff  and 
me  of  repairing 
to  as  a  mode  of 
ng   constructed, 
^e  must  assume 
:ant   what   they 
to  repair  an  old 
;  must  be  admit- 
in  a  substantial 
was  for  repairs, 
he  parties  to  the 
1  as  the  contract 
^ho  stands  in  the 
!  his  rights.     As 
js  in  the  former, 
it.     No  error  of 
ise. 
dgment  affirmed. 

r,  Johnson,  7  Johns. 
Wend.  51;  Pierce 
;  Aborn  v.  Mason, 
oster  V.  Pettibone, 
V.  Munroe,  52  ^^e. 


HERTIN. 


877- 

ere  owners  of  ad- 
of  1S73-4  defend- 
urt  below,  in  con- 
jcation,  went  upon 
,  quantity  of  cord 
;  bank  of  Portage 
n  possession  of  by 


the  mining  company,  and  disposed  of  for  its  own  purposes. 
The  wood  on  the  bank  of  the  lake  was  worth  $2.87  1-2  per 
cord,  and  the  value  of  the  labor  expended  by  plaintiffs  in 
cutting  and  placing  it  there  was  $1.87  1-2  per  cord.  It  was 
not  clearly  shown  that  the  mining  company  had  knowledge  of 
the  cutting  and  hauling  by  the  plaintiffs  while  it  was  in  prog- 
ress. After  the  mining  company  had  taken  possession  of  the 
wood,  plaintiffs  brought  this  suit.  The  declaration  contains 
two  special  countSj  the  first  of  which  appears  to  be  a  count  in 
trover  for  the  conversion  of  the  wood.  The  second  is  as 
follows: 

"And  for  that  whereas  also,  the  said  plaintiff,  Michael 
Hertin,  was,  in  the  year  1874  and  1S75,  the  owner  in  fee  simple 
of  certain  lands  in  said  county  of  Houghton,  adjoining  the  lands 
of  the  said  defendant,  and  the  said  plaintiffs  were,  during  the 
years  last  aforesaid,  engaged  as  copartners  in  cutting,  hauling, 
and  selling  wood  from  said  lands  of  said  Michael  Hertin,  and 
by  mistake  entered  upon  the  lands  of  the  said  defendant,  which 
lands  adjoined  the  lands  of  the  said  plaintiff,  Michael  Hertin, 
and  under  the  lielief  that  said  lands  were  the  lands  of  the  said 
plaintiff,  Michael  Hertin,  cut  and  carried  away  therefrom  a 
large  amount  of  wood,  to  wit:  one  thousand  cords,  and  piled 
the  same  upon  the  shore  of  Portage  Lake,  in  said  county  of 
Houghton,  and  incurred  great  expense,  and  paid,  laid  out,  and 
expended  a  large  amount  of  money  in  and  about  cutting  and 
splitting,  hauling  and  piling  said  wood,  to  wit:  the  sum  of  two 
thousand  dollars,  and  afterward,  to  wit^  on  the  first  day  of 
June,  A.  D.  1875,  in  the  county  of  Houghton  aforesaid,  the 
said  defendant,  with  force  and  arms,  and  without  any  notice  to 
or  consent  of  said  plaintiffs,  seized  the  said  wood  and  took  the 
same  from  their  possession  and  kept,  used,  and  disposed  of  the 
same  for  its  own  use  and  purposes,  and  the  said  plaintiffs  aver 
that  the  labor  so  as  aforesaid  done  and  performed  by  them,  and 
the  expense  so  as  aforesaid  incurred,  laid  out,  and  expended  by 
them  in  cutting,  splitting,  hauling,  and  piling  said  wood, 
amounting  as  aforesaid  to  the  value  of  two  thousand  dollars, 
increased  the  value  of  said  wood  ten  times  and  constituted  the 
chief  value  thereof,  by  reason  whereof  the  "said  defendant  then 
and  there  became  liable  to  pay  to  the  said  plaintiff  the  value  of 
the  labor  so  as   aforesaid   expended  by  them    upon   said   wood 


213       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

and  the  expense  so  as  aforesaid  incurred,  laid  out,  and  expended 
by  them  in  cutting,  splitting,  hauling,  and  piling  said  wood, 
to  wit:  the  said  sum  of  two  thousand  dollars,  and  being  so 
liable,  the  said  defendant  in  consideration  thereof,  afterward, 
to  wit:  on  the  same  day  and  year  last  aforesaid  and  at  the 
place  aforesaid,  undertook,  and  then  and  there  faithfully 
promised  the  said  plaintiffs  to  pay  unto  the  said  plaintiffs  the 
said  sum  of  two  thousand  dollars  and  the  interest  thereon." 

The  circuit  judge  instructed  the  jury  as  follows:  "If  you 
find  that  the  plaintiffs  cut  the  wood  from  defendant's  land  by 
mistake  and  without  any  willful  negligence  or  wrong,  I  then 
charge  you  that  the  plaintiffs  are  entitled  to  recover  from  the 
defendant  the  reasonable  cost  of  cutting,  hauling,  and  piling  the 
same."  This  presents  the  only  question  it  is  necessary  to  con- 
sider on   this   record.     The   jury   returned    a   verdict   for   the 

plaintiffs. 

Some  facts  appear  by  the  record  which  might  perhaps  have 
warranted    the    circuit  judge    in   submitting   to    the   jury   the 
question  whether  the  proper  authorities  of  the  mining  company 
were  not  aware  that  the  wood  was  being  cut  by  the   plaintiffs 
under  an  honest  mistake  as  to  their  rights,  and  were  not  placed 
by  that  knowledge   under  obligation   to  notify  the  plamt.ffs  of 
their  error.     Bat  as  the  case  was  put  to  the  jury,  the   question 
presented  by  the  record  is   a  narrow  question  of  law,  which 
may  be  stated  as  follows:      Whether,  where  one  in  an  honest 
mistake  regarding  his  rights,  in  good  faith  performs  labor  on 
the  property  of  another,  the  benefit  of  which  is  appropriated  by 
the  owner,  the  person  performing  such  labor  is  not  entitled  to 
be  compensated  therefor  to  the  extent  of  the  benefit  received  by 
the  owner  therefrom?     The  affirmative  of  this  proposition  the 
plaintiffs  undertook  to  support,  having  first  laid  the  foundation 
for  it  by  shoNfing  the  cutting  of  the  wood  under  an  honest  mis- 
take as  to  the  location  of  their  land,  the  taking  possession  of 
the  wood  afterward  by  the  mining  company,  and  its  value  m 
the  condition  in  which  it  then  was  and  where  it  was,  as  com- 
pared with  its  value  standing  in  the  woods. 

We  understand  it  to  be  admitted  by  the  plaintiffs  that  no 
authority  can  be  found  in  support  of  the  proposition  thus  stated. 
It  is  conceded  that  at  the  common  law  where  one  thus  goes 
upon  the  land   of    another   on   an    assumption   of   ownership. 


i 


IRTY. 


ISI.E    ROYALE    MINIXG    CO.    V.    HERTIN. 


ai3 


expended 
id    wood, 

1  being  so 
if  terward , 
,nd  at   the 

faithfully 
lintiffs  the 
•eon." 
:  "If  you 
s  land  by 
ng,  I  then 
from  the 
piling  the 
iry  to  con- 
ct   for   the 

rhaps  have 
;  jury  the 
r  company 

2  plaintiffs 
not  placed 
DJaintiffs  of 
e  question 
law,  which 

an  honest 
s  labor  on 
opriatcd  by 
:  entitled  to 
received  by 
josition  the 

foundation 
honest  mis- 
)ssession  of 
its  value  in 
as,  as  com- 

iffs  that  i;o 

thus  stated. 

e   thus  goes 

ownership. 


though  in  perfect  good  faith  and  under  honest  mistake  as  to 
his  rights,  he  may  be  held  responsible  as  a  trespasser.  His 
good  faith  does  not  excuse  him  from  the  payment  of  damages, 
the  law  requiring  him  at  his  peril  to  ascertain  what  his  rights 
are  and  not  to  invade  the  possession,  actual  or  constructive,  of 
another.  If  he  can  not  thus  protect  himself  from  the  payment 
of  damages,  still  less,  it  would  seem,  can  be  established  in 
himself  any  affirmative  rights  based  upon  his  unlawful,  though 
unintentional,  encroachment  upon  the  rights  of  another.  Such 
is  unquestionably  the  rule  of  the  common  la  at,  and  such  it  is 
admitted  to  be. 

It  is  said,  however,  that  an  exception  to  this  rule  is  admitted 
under  certain  circumstances,  and  that  a  trespasser  is  even  per- 
mitted  to  make  title  in  himself  to  the  property  of  another  where 
in  good  faith  he  has  expended  his  own  labor  upon  it,  under  cir- 
cumstances which  would  render  it  grossly  unjust  to  permit  the 
other  party  to  appropriate  the  benefit  of  such  labor. 

The  doctrine  here  invoked  is  the  familiar  one  of  title  by  ac- 
cession, and  though  it  is  not  claimed  that  the  present  case  is 
strictly  within  it,  it  is  insisted  that  it  is  within  its  equity,  and 
that  there  would  be  no  departure  from  settled  principles  in  giv- 
ing these  plaintiffs  the  benefit  of  it. 

The  doctrine  of  title  by  accession  is  in  the  common  law  as 
old  as  the  law  itself,  and  was  previously  known  in  other  sys. 
tems.  It  general  principles  may  therefore  be  assumed  to  be 
well  settled.  A  willful  trespasser  who  expends  his  money  or 
labor  upon  the  property  of  another,  no  matter  to  what  extent, 
will  acquire  no  property  therein,  but  the  owner  may  reclaim  it 
so  long  as  its  identity  is  not  changed  by  conversion  into  some 
new  product.  Indeed  some  authorities  hold  that  it  may  be 
followed  even  after  its  identity  is  lost  in  a  new  product;  that 
grapes  may  be  reclaimed  after  they  have  been  converted  into 
wine,  and  grain  in  the  form  of  distilled  liquors.  Silsbury  v. 
McCoon,  3  N.  Y.  379.  See  Riddle  v.  Driver,  12  Ala.  590. 
And  while  other  authorities  refuse  to  go  so  far,  it  is  on  all  hands 
conceded  that  where  the  appropriation  of  the  property  of  another 
was  accidental  or  through  mistake  of  fact,  and  labor  has  in 
good  faith  been  expended  upon  it  which  destroys  its  identity, 
or  converts  it  into  something  substantially  different,  and  the 
value  of  the  original  article  is    insignificant   as    compared  with 


214       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

the  value  of  the   new   product,  the   title    to   the  property  in  its 
converted  form  must  be  held  to  pass  to  the  person  by  whose 
labor  in  good  faith  the  change  has  been   wrought,  the   original 
owner  being  permitted,  as   his  remedy,  to   recover  the  value  of 
the  article  as  it  was  before  the  conversion.  This  is  a  thoroughly 
equitable  doctrine,  and  its  aim  is  so   to  adjust  the   rights  of  the 
parties  as  to  save  both,  if  possible,  or  as  near  as  possible,  from 
any  loss.     But  where  the  identity  of  the   original  article  is  sus- 
ceptible  of   being   traced,  the  idea  of  a  change  in  the  property 
is  never   admitted,  unless  the   value  of  that  which  has  been  ex- 
pended upon    it  is     ufficiently   great,    as   compared   with    the 
original  value,  to   render  the   injustice  of  permitting  its  appro- 
priation by  the  original  owner  so   gross   and   palpable  as  to  be 
apparent  at  the  first  blush.     Perhaps  no  case   has   gone  further 
than  Wctherbee   v.  Green,  22  Mich.  311,  in  which  it  was  held 
that  one  who,  by  unintentional  trespass,  had  taken  from  the 
land  of  another  young  trees  of  the  value  of  $25,  and  converted 
them  into  hoops  worth  $700,  had  thereby  made  them  his  own, 
though  the  identity  of  trees  and  hoops  was  perfectly  capable  of 
being  traced  and  established. 

But  there  is  no  such  disparity  in  value  between  the  standing 
trees  and  the  cord  wood  in  this  case  as  was  found  to  exist 
between  the  trees  and  the  hoops  in  Wetherbee  v.  Green. 

The  trees  are  not  only  susceptible  of  being  traced  and  identi- 
fied in  the  wood,  but  the  difference  in  value  between  the  two  is 
not  so  great  but  that  it  is  conceivable  the  owner  may  have 
preferred  the  trees  standing  to  the  wood  cut. 

The  cord  wood  has  a  higher  market  value,  but  the  owner 
may  have  chosen  not  to  cut  it,  expecting  to  make  some  other 
use  of  the  trees  than  for  fuel,  or  anticipating  a  considerable  rise 
in  value  if  they  were  allowed  to  grow. 

It  can  not  be  assumed  as  a  rule  that  a  man  prefers  his  trees 
cut  into  cord  wood  rather  than  left  standing,  and  if  his  right  to 
leave  them  uncut  is  interfered  with,  even  by  mistake,  it  is 
manifestly  just  that  the  consequences  should  fall  upon  the  person 
committing  the  mistake,  and  not  upon  him.  Nothing  could 
more  encourage  carelessness  than  the  acceptance  of  the  principle 
that  one  who  by  mistake  performs  labor  upon  the  property  of 
another  should  lose  nothing  by  his  error,  but  should  have  a 
claim  upon  the  owner  for  remuneration. 


Mi 


ISLE    ROYALE    MINING    CO.    V.    HERTIN. 


a»5 


Why  should  one  be  vigilant  and  careful  of  the  rights  of 
others  if  such  were  the  law  ?  Whether  mistaken  or  not  is  all 
the  same  to  him,  for  in  either  case  he  has  employment  and 
receives  his  remuneration;  while  the  inconveniences,  if  any, 
are  left  to  rest  with  the  innocent  owner.  Such  a  doctrine  offers 
a  premium  to  heedlessness  and  blunders,  and  a  temptation  by 
false  evidence  to  give  an  intentional  trespass  the  appearance  of 
an  innocent  mistake. 

A  case  could  seldom  arise  in  which  the  claim  to  compensa- 
tion could  be  more  favorably  presented  by  the  facts  than  it  is 
in  this ;  since  it  is  highly  probable  that  the  defendant  would 
suffer  neither  hardship  nor  inconvenience  if  compelled  to  pay 
the  plaintiffs  for  their  labor.  But  a  general  principle  is  to  be 
tested,  not  by  its  operation  in  an  individual  case,  but  by  its 
general  workings.  If  a  mechanic  employed  to  alter  over  one 
man's  dwelling  house,  shall,  by  mistake,  go  to  another  which 
happens  to  be  unoccupied,  and  before  his  mistake  is  discovered, 
at  a  larg-,:  expenditure  of  labor,  shall  thoroughly  overhaul  and 
change  it,  will  it  be  said  that  the  owner,  who  did  not  desire  his 
house  disturbed,  must  either  abandon  it  altogether,  or,  if  he 
takes  possession,  must  pay  for  labor  expended  upon  it  which  he 
neither  contracted  for,  desired,  nor  consented  to?  And  if  so, 
what  bounds  can  be  prescribed  to  which  the  application  of  this 
doctrine  can  be  limited?  The  man  who  by  mistake  carries  off 
the  property  of  another  will  next  be  demanding  payment  for  the 
transportation ;  and  the  only  person  reasonably  secure  against 
demands  he  has  never  assented  to  create,  will  be  the  person 
who,  possessing  nothing,  is  thereby  protected  against  anything 
being  accidentally  improved  by  another  at  his  cost  and  to  his 
ruin. 

The  judgment  of  the  circuit  court  must  be  reversed  and  a 
new  trial  ordered. 

See  note  to  Silsbury  v.  McCoon,  post,  p.  224. 


2l6       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

§  48.    Where  identity  of  article  has  been  changed. 
WETHERBEE  v.  GREEN. 

[22  Mich.  311.] 
Supranr  Court  of  Michigan,  1871. 

CooLEY,  J.— The  defendants  in  error  replevied  of  VVetherbee 
a  quantity  of  hoops  which  he  had  made  from  timber  cut  upon 
their   land.     Wetherbee    defended   the   replevin    suit   on   two 

grounds. 

First,  he  claimed  to  have  cut  the  timber  under  a  license  from 
ore  P :  nner,  who  was  formerly  a  tenant  in  common  of  the  land 
w!  .  .  :;a,  and  had  been  authorized  by  Green  to  give  such 

lif  cfore  the  license  was  given,  however,  Sumner  had 

sold  his  interest  in  the  land  to  Camp  and  Brooks,  the  coplain- 
tlKs  vjth  Green,  and  had  conveyed  the  same  by  warranty  deed  ; 
bu^  Wi  I  rbe.  . aimed  and  offered  to  show  by  parol  evidence 
that  the  sole  piiipu»e  of  this  conveyance  was  to  secure  a  pre- 
existing debt  from  Sumner  to  Camp  and  Brooks,  and  that  con- 
sequently it  amounted  to  a  mortgage  only,  leaving  in  Sumner, 
under  our  statute,  the  usual  right  of  a  mortgagor  to  occupy  and 
control  the  land  until  foreclosure.  He  also  claimed  that  the 
authority  given  by  Green  to  Sumner  had  never  been  revoked, 
and  that  consequently  the  license  given  would  be  good  against 
Green,  and  constitute  an  effectual  bar  to  the  suit  in  replevin, 
which  must  fail  if  any  one  of  the  plaintiffs  was  precluded  from 
maintaining  it. 

But  if  the  court  should  be  against  him  on  this  branch  of  the 
case,  Wetherbee  claimed  further  that  replevin  could  not  be 
maintained  for  the  hoops,  because  he  had  cut  the  timber  in  good 
faith,  relying  upon  a  permission  which  he  supposed  proceeded 
from  the  parties  having  lawful  right  to  give  it,  and  had,  by  the 
expenditure  of  his  labor  and  money,  converted  the  trees  into 
chattels  immensely  more  valuable  than  they  were  as  they  stood 
in  the  forest,  and  thereby  he  had  made  such  chattels  his  own. 
And  he  offered  to  show  that  the  standing  timber  was  worth 
twenty-five  dollars  only,  while  the  hoops  replevied  were  shown 
by  the  evidence  to  be  worth  near  seven  hundred  dollars;   also, 


Ml 


;rty. 


ed. 


WETHERHEE    V.    GREEN. 


ai7 


/"etherbee 

cut  upon 

on   two 

;nse  from 
f  the  land 
give  such 
nner  had 
e  coplain- 
nty  deed  ; 

evidence 
Lire  a  prc- 
1  that  con- 

Sumner, 
ccupy  and 
\  that  the 
1  revoked, 
od  against 
I  replevin, 
uded  from 

tich  of  the 
Id  not  be 
)er  in  good 
proceeded 
lad,  by  the 
trees  into 
they  stood 
Is  his  own. 
was  worth 
(•ere  shown 
lars;   also, 


that  at  the  time  of  obtaining  the  license  from  Sumner  he  had 
no  knowledge  of  the  sale  of  Sumner's  interest,  but,  on  the  other 
hand,  had  obtained  an  abstract  of  the  title  to  the  premises  from 
a  firm  of  land  agents  at  the  county  seat,  who  kept  an  abstract 
book  of  titles  to  land  in  that  county,  which  abstract  showed  the 
title  to  be  in  Green  and  Sumner,  and  that  he  then  purchased 
the  timber,  relying  upon  the  abstract  and  upon  Sumner's  state- 
ment that  he  was  authorized  by  Green  to  make  the  sale.  The 
evidence  offered  to  establish  these  facts  was  rejected  by  the 
court,  and  the  plaintiffs  obtained  judgment. 

The  principal  question  which,  from  this  statement,  appears 
to  be  presented  by  the  record  may  be  stated  thus :  Has  a  party 
who  has  taken  the  property  of  another  in  good  faith  and  in 
reliance  upon  a  supposed  right,  without  intention  to  commit 
wrong,  and  by  the  expenditure  of  his  money  or  labor  worked 
upon°it  so  great  a  transformation  as  that  which  this  timber 
underwent  in  being  transformed  from  standing  trees  into  hoops, 
acquired  such  a  property  therein  that  it  can  not  be  followed 
into  his  hands  and  reclaimed  by  the  owner  of  the  trees  in  its 
improved  condition  ? 

The  objections  to  allowing  the  owner  of  the  trees  to  reclaim 
the  property  under  such  circumstances  are  that  it  visits  the 
involuntary  wrongdoer  too  severely  for  his  unintentional  tres- 
pass,  and  at  the  same  time  compensates  the  owner  beyond  all 
reason  for  the  injury  he  has  sustained.  In  the  redress  of 
private  injuries  the  law  aims  not  so  much  to  punish  the  wrong- 
doer as  to  compensate  the  sufferer  for  his  injuries;  and  the 
cases  in  which  it  goes  farther  and  inflicts  punitory  or  vindictive 
penalties  are  those  in  which  the  wrongdoer  has  committed  the 
wrong  recklessly,  willfully,  or  maliciously,  and  under  circum- 
stances  presenting  elements  of  aggravation. 

Where  vicious  motive  or  reckless  disregard  of  right  are  not 
involved,  to  inflict  upon  a  person  who  has  taken  the  property 
of  another,  a  penalty  equal  to  twenty  or  thirty  times  its  value, 
and  to  compensate  the  owner  in  a  proportion  equally  enormous, 
is  so  opposed  to  all  legal  idea  of  justice  and  right,  and  to  the 
rules  which  regulate  the  recovery  of  damages  generally,  that, 
if  permitted  by  the  law  at  all,  it  must  stand  out  as  an  anomaly 
and  must  rest  upon  peculiar  reasons. 


!lS 


MODKS  OK  OIITAINING  TITLE  TO  PERSONAL  PROPERTY. 


As  a  general  rule,  one  whose  property  has  been  appropriated 
byanothcr  without  authority  has  a  right  to  follow  it  and  recover 
the  possession   from  any  one  who  may  have  received  it ;  and 
if,  in  the   meantime,  it  has   been    increased  in   value   by   the 
addition  of  labor  or  money,  the   owner   may,  nevertheless,  re- 
claim it,  provided  there  has  been  no   destruction  of  substantial 
identity'     So  far  the   authorities  are  agreed.     A  man  can  not 
genera'lly  be  deprived  of  his  property  except  by  his   own  vol- 
untary  act  or  by  operation  of  law ;  and  if  unauthorized  parties 
have  bestowed  expense  or  labor  upon  it,  that  fact  can  not  con- 
stitute a  bar  to  his  reclaiming  it  so  long  as  identification  is  not 
impracticable.     But  there  must,  nevertheless,  in  reason  be  some 
limit  to  the  right  to  follow  and  reclaim  materials  which  have 
undergone  a  process  of  manufacture.     Mr.  Justice  Blackstone 
la>s  down  the  rule  very  broadly,  that  if  a  thing  is  changed 
into  a  different  species,  as  by  making  wine  out  of  another's 
grapes,  oil  from  his  olives,  or  bread  from  his  wheat,  the  product 
belongs  to  the  new  operator,  who  is  only  to  make  satisfaction  to 
the  former  proprietor  for  the  materials  converted.     2  Bl.  Com. 
404.     We   do  not  understand  this  to  be  disputed  as  a  general 
proposition,  though  there  are  some  authorities  which  hold  that 
in  the   case  of  a  willful  appropriation  no  extent  of  conversion 
can  give  to  the  willful  trespasser  a  title  to  the  property  so  long 
as  th^'e  original  materials  can  be  traced  in  the  improved  article. 
The  distinction  thus  made  between  the  case  of  an  appropriation 
in  good  faith  and  one  based   on  intentional  wrong  appears  to 
have  come  from  the  civil  law,  which  would  not  suffer  a  party 
to  acquire  a  title  by  accession,  founded  on  his  own  act,  unless 
he  had  taken  the  materials  in  ignorance  of  the  true  owner  and 
given  them  a  form  which   precluded  their   being   restored   to 
their  original  condition.     2  Kent,  363.    While  many  cases  have 
followed  the  rule  as  broadly  stated  by  Blackstone,   others  have 
adopted  the  severe  rule  of  the  civil  law  where  the  conversion 
was  in   willful    disregard   of  right.     The  New  York  cases  of 
Betts  V.    Lee,  5  Johns.    348;  Curtis  v.   Groat,  6  Johns.  168; 
and  Chandler  v.  Edson,  9  Johns.  362,  were  all  cases  where  the 
willful  trespasser  was  held  to  have   acquired  no  property  by  a 
very  radical  conversion,  and  in  Silsbury  v.  McCoon,  3  N.  Y. 
378,  385,  the  whole   subject  is  very  fully  examined,  and  Rug- 
gles,  J.,in   delivering   the   opinion  of  the  court,  says   that  the 


RTY. 

opriatcd 
1  recover 
[  it ;  and 
by   the 
less,  re- 
ibstantial 
I  can  not 
own  vol- 
id  parties 
not  con- 
on  is  not 
I  be  some 
ich  have 
lackstone 
changed 
another's 
e  product 
faction  to 
Bl.  Com. 
a  general 
hold  that 
onversion 
y  so  long 
id  article, 
ropriation 
ippears  to 
er  a  party 
ict,  unless 
jwner  and 
jstored   to 
:ases  have 
thers  have 
:onversion 
k  cases  of 
)hns.  1 68; 
where  the 
perty  by  a 
1,  3  N.  Y. 
and  Rug- 
s   that  the 


WETHERBEE    V.    GllEEN. 


119 


common  law  and  the  civil  law  agree  "that  if  the  chattel  wrong- 
fully taken  come   into  the  hands  of  an  innocent    holder,  who, 
believing  himself  to  be  the   owner,  converts  the   chattel  into  a 
thinij  of  different  species  so  that  its  identity  is  destroyed,  the 
orighial  owner  can  not  reclaim  it.     Such  a  change  is  said  to  be 
wrout^ht   when    wheat  is  made   into   bread,  olives  into  oil,  or 
grapes   into    wine.     In  a  case  of  this  kind,  the    change  in  the 
species  of  the  chattel  is  not  an  intentional  wrong  to  the  original 
owner.     It  is,  therefore,  regarded  as  a  destruction  or  consump- 
tion of  the   original  materials,  and    the  true  owner  is  not  per- 
mitted to  trace  the   identity  into  the   manufactured    article  for 
the  purpose  of  appropriating  to  his  own  use  the  labor  and  skill 
of  the    innocent  occupant   who   wrought   the   change ;  but  he 
is   put   to  his   action   for   damages  as  for  a  thing   consumed, 
and  may   recover  its  value  as  it  was   when  the  conversion  or 
consumption  took  place."      And  further  on  he  says  of  the  civil 
law,   with  which   the  common  law  is  supposed  by  him  to  har- 
monize: "The  acknowledged  principle  of  the  civil  law  is  that  a 
willful  wrongdoer  acquires  no  property  in  the  goods  of  another 
either  by  the    wrongful   taking  or  by  any    change   wrought  iu 
them  by  his  labor  or  skill,  however  great  that  change  may  be. 
The  new  product  in  its  improved  state  belongs  to  the  owner  of 
the  original  materials,  provided  it  be  proved  to  be  made  from 
them ;  the  trespasser  loses  his  labor,  and  that  change  which  is 
regarded  as  a  destruction  of  the  goods,  or  an  alteration  of  their 
identity  in  favor  of  an  honest  possessor,  is  not  so  regarded  as 
between  the  original  owner  and  a  willful  violator  of  his  right 
of   property."     In  further  illustration  of  the   same  views  we 
refer  to  Hyde  v.  Cookson,  21  Barb.  104;   Martin  v.   Porter,  5 
M.  &   W.    351;  Wild  V.    Holt,  9  M.  &   W.   673;    Baker  v. 
Wheeler,  8  Wend.  50S;  Snyder  v.  Vaux,  2  Rawle,  427;  Rip- 
die  v.  Driver,  I3  Ala.  590. 

It  does  not  become  necessary  for  us  to  consider  whether  the 
case  of  Silsbury  v.  McCoon,  3  N.  Y.  378,  which  overruled  the 
prior  decisions  of  the  supreme  court  (reported  in  4  Denio,  425, 
and  6  Hill,  332),  has  not  recognized  a  right  in  the  owner  of  the 
original  materials  to  follow  them  under  circumstances  when 
it  would  not  be  permitted  by  the  rule  as  recognized  by  the 
authorities  generally.  That  was  the  case  where  a  willful  tres- 
passer had  converted  corn  into  whisky,  and  the  owner  of  the 


220       MOPKS  OK  OnTAINING  TITLE  TO  PKIISONAI.  PROPERTY. 


corn  was  held  entitled  to  the  manufactured  article.  The  rule 
as  given  by  lllackstone  would  confine  the  owner,  in  such  case, 
to  his  remedy  to  recover  damages  for  the  original  taking.  Bnt 
we  arc  not  called  upon  in  this  case  to  express  any  opinion  re- 
garding the  rule  applicable  in  the  case  of  a  willful  trespasser, 
since  the  authorities  agree  in  holding  that  when  the  wrong  had 
been  involuntary  the  owner  of  the  original  materials  is  pre- 
cluded, by  the  civil  law  and  common  law  alike,  from  following 
and  reclaiming  the  property  after  it  has  undergone  a  trans- 
foi-mation  which  converts  it  into  an  article  substantially  dif- 
ferent. 

The  cases  of  confusion  of  goods  are  closely  analogous.   It  has 
always   been   held    that   he   who,    without   fraud,    intentional 
wrong,  or  reckless   disregard  of  the  rights  of  others,  mingled 
his  goods  with   those  of  another  person  in  such   manner  that 
they  could  not  be  distinguished,  should,  nevertheless,  be  pro- 
tected in  his  own  ownership  so  far  as  the  circumstances  would 
permit.     The  question  of  motive  here  becomes  of  the  highest 
importance;  for,  as  Chancellor  Kent  says,  if  the  commingling 
of  property  "was  willfully  made  without  mutual  consent,  *  * 
the  common  law  gave  the  entire  property,  without  any  account, 
to  him  whose  property  was   originally  invaded  and  its  distinct 
character  destroyed.     Popham's   Rep.   3S,  pi.    2.     If   A.  will 
willfully  intermix  his  torn  or  hay  with  that  of  B.,  or  casts  his 
gold  into  another's  crucible  so  that  it  becomes    impossible  to 
distinguish  what  belonged  to  A.  from  what  belonged  to  B.,  the 
whole  belongs  to  B.     Popham's  Rep.,  ub.  supra;    Ward  v. 
Ayrc,  2  Bulst.  333."  2  Kent,  364-5;  and  see  2  Bl.  Com.  404; 
Hart  v.   Ten   Eyck,  2  Johns.   Ch.  62  ;  Gordon  v.  Jenney,  16 
Mass.  465;  Treat  v.  Barber,  7  Com.  2S0;  Barron  v.  Cobleigh, 
II  N.  II.  561 ;  Roth  V.  Wells,  29  N.  Y.  4S6 ;  Willard  v.  Rice, 
II  Met.   493;  Jenkins  V.   Steanka,  19  Wis.  12S;  Hesseltine  v. 
Stockwell,  30  Me.  237.     But  this  rule  only  applies  to  wrong- 
ful or  fraudulent   intermixtures.     There  may  be  an  intentional 
intermingling   and   yet   no   wrong   intended;   as  where  a  man 
mixes  two  parcels  together,  supposing  both  to  be  his  own,  or, 
that  he  was  about  to  mingle  his  with  his  neighbor's,  by  agree- 
ment, and   mistakes  the  parcel.     In  such  cases,  which  may  be 
deemed  accidental  intermixtures,  it  would  be  unreasonable  and 
unjust  that  he  should   lose  his  own  or  be  obliged  to  take  and 


KUTV. 

The  rule 
*uch  case, 
iifj.  Hi't 
pinion  le- 
respasscr, 
kron<jf  iuul 
lis  is  prc- 
followinjj 
e  a  trans- 
tially  dif- 

us.  It  has 
ntentional 
,  mingled 
inner  that 
s,  be  pro- 
ces  would 
lie  highest 
nmingling 
nsent,  *  * 
y  account, 
its  distinct 
[f  A.  will 
r  casts  his 
)ossible  to 
to  B. ,  the 
Ward  V. 
rom.  404; 
fenney,  16 
Cobleigh, 
d  V.  Rice, 
sseltine  v. 
to  wrong- 
intentional 
lere  a  man 
s  own,  or, 
by  agree - 
ch  may  be 
inable  and 
} take  and 


WKTIIKUIIEK    V.    GUEEN. 


221 


pay  for  his  neighbor's,  as  he  would  have  been  under  the  civil 
law.  Morton,  J.,  in  Ryder  v.  Hathaway,  3i  I'ick.  303.  In 
many  cases  there  will  be  difficulty  in  determining  precisely  how 
he  can  be  protected  with  due  regard  to  the  rights  of  the  other 
party,  but  it  is  clear  that  the  law  will  not  forfeit  his  property 
in  conseciuencc  of  the  accident  or  inadvertence,  unless  a  just 
measure  of  redress  to  the  other  party  renders  it  inevitable. 
Story  on  Bailm.,  sec.  40;  Sedg.  on  Dams.  4S3. 

The  important  question  on  thi=  branch  of  the  case  appears  to 
us  to  be,  whether  standing  trees,  A'hen  cut  and  manufactured 
into  hoops,  arc  to  be  regarded  as  so  far  changed  in  character 
that  their  identity  can  be  said  to  be  destn  yed  within  the  mean- 
ing of  the  authorities.     And  as  we  enter  upon  a  discussion  of 
this  question,  it  is  evident  at  once  that  it  is  difficult,  if  not  im- 
possible, to  discover  any  invari.ible  and  satisfactory  test  which 
can  be   applied    to  all  the    cases  which    arise  in  such  infinite 
variety.     "If  grain    be   taken  and  made  into  malt,  or  money 
taken  and  made  into  a  cup,  or  timber  taken  and  made  into  a 
house,  it  is  held  in  the  old  English  law  that  the  property  is  so 
altered  as  to  change  the  title.     Bro.  tit.  Property,  pi.  33."     2 
Kent,  363.     But  cloth  made  into  garments,  leather  into  shoes, 
trees  hewn  or  sawed  into  timber,  and  iron  made  into  bars,  it  is 
said,  may  be  reclaimed  by  the  owner  in  their  new  and  original 
shape.     Sedg.  on  Dams.  484 ;  Snyder  v.  Vaux,  2  Rawle,  427  ; 
Betts  V.   Lee,   5  Johns.   34S;    Curtis  v.   Groat,  6  Johns.  168; 
Brown  v.  Sax,  7  Cow.  95 :  Silsbury  v.  McCoon,  4  Denio,  333, 
per  Bronson,  J.;  Ibid.,  6  Hill,  426,  per  Nelson,  Ch.  J.;  Ibid., 
3  N.  Y.  386,  per  Ruggles,  J.     Some  of  the   cases  place  the 
right  of  the  former  owner  to  take  the  thing  in  its  altered  condi- 
tion upon  the  question  whether  its  identity  could  be  made  out 
by  the  senses.     Year-Book  5,  H.  7,  fo.  15,  pi.  6;  4  Denio, 
33c,  note.     But  this  is  obviously  a  very  unsatisfactory  test,  and 
in  many  cases  would  wholly  defeat  the  purpose  which  the  law 
has  in  view  in  recognizing  a  change  of  title  in   any  of  these 
cases.     That  purpose  is  not  to  establish  any  arbitrary  distinc- 
tions  based   upon    mere    physical    reasons,    but   to  adjust  the 
redress  afforded  to  the  one  party  and  the  penalty  inflicted  upon 
the  other,  as  near  as  circumstances  will  permit,  to  the  rules  of 
substantial  justice.     It  may  often  happen  that  no  difficulty  will 
be  experienced  in  determining  the  identity  of  a  piece  of  timber 


223       MODKS  Ol'  onTAlNINO  TITLE  TO  PERSONAL  PHO'"    HTV. 


which  has  been  taken  and  built  into  a  house;  but  no  one  dis- 
putes that  the  right  of  the  original  owner  is  gone  in  such  a  case. 
A  particular  piece  of  wood  might  perhaps  be  traced  without 
trouble  into  a  church  organ,  or  other  ccpially  valuable  article; 
but  no  one  would    defend  a  rule  of    law   which,  because  the 
identity  could  be  determined  by  the  senses,  would  permit  the 
owner   of   the    wood    to    appropriate    a   musical    instrument  a 
hundred  or  a  thousand  times  the  value  of  his  original  materials, 
when  the  party  who,  under  like  circumstances,  has  doubled  the 
value  of  another  man's  corn,  by  converting  it  into  malt,   is  per- 
mitted to  retain  it  and  held  liable  for  the  original  value  only. 
Such  distinctions  in  the  law  would  be  w  ithout  reason,  and  CDuld 
not  be  tolerated.     When  the  right  to  the  improved  article  is 
the    point  in  issue,   the   question,  how  much  the    property  or 
labor  of  each  has  contributed  to  make  it  what  it  is,  must  always 
be  one  of  first  importance.     The  owner  of  a  beam  built  into 
the  house  of  another  loses  his  property  in  it,  because  the  beam 
is  insignificant  in  value  or  importance   as  compared   to  that  to 
which    It   has   become    attached,  and  the   musical    instrument 
belongs  to  the  maker,  rather  than  to  the  man  whose  timber  was 
used  in  making  it — not  because  the  timber  can  not  be  identified, 
but  because  in  bringing  it  to  its  present  condition  the  value  of 
the  labor  has  swallowed  up  and  rendered  insignificant  the  value 
of  the  original  materials.     The  labor,  in  the  case  of  the  musical 
instrument,  is  just  as  much  the  principal  thing  as  the  house  is  in 
the  other  case  instanced  ;  the  timber  appropriated  is  in  each  case 
comparatively  unimportant.     No  test  which  satisfies  the  reason 
of  the  law    can  be  applied  in  the  adjustment  of  questions  of 
title  to  chattels  by  accession  unless  it  keeps  in  view  the  circum- 
stance of  relative  values.     When  we  bear  in  mind  the  fact  that 
what  the  law  aims    at    is   the   accompli«-hment   of   substantial 
equity,  we  shall  readily  perceive  that  the  fact  of  the  value  of 
the  materials  having  been  increased  a  hundred-fold  is  of  more 
importance  in  the   adjustment   than    any  chemical    change   or 
mechanical  transformation,  which,  however  radical,  is  neither 
expensive   to  the  party  making  it  nor  adds  materially    to  the 
value.    There  may  be  complete  changes  with  so  little  improve- 
ment in  value  that  there  could  be  no  hardship  in  giving  the 
owner  of  the  original  materials  the  improved  article ;  but  in  the 
present  case,  where  the  defendant's  labor — if  he  shall  succeed 


1 


HTV. 

one  dis- 
:h  a  case, 
1  without 
Ic  article ; 
cause  the 
cimit  the 
;iunient  a 
materials, 
)ul)led  the 
t,  is  per- 
ilue  only, 
and  could 

articU'  is 
operty  or 
ist  always 
built  into 
the  beam 
to  that  to 
nstrument 
imber  was 
identified, 
e  value  of 
:  the  value 
le  musical 
louse  is  in 
1  each  case 
the  reason 
lestions  of 
lie  circum- 
e  fact  that 
substantial 
e  value  of 
is  of  more 
change   or 

is  neither 
illy  to  the 
e  improve- 
giving  the 

but  in  the 
Ul  succeed 


WETIIKHnr.E    V.    GUIiEN. 


933 


in  sustaining  liis  offer  of  testimony — will  appear  to  have  given 
the  timber  in  its  present  condition  nearly  all  its  val  lo,  all  the 
grounds  of  equity  exist  which  influence  the  courts  in  recogniz- 
ing a  change  of  title  under  any  circumstances. 

We  are  of  opinion  that  the  court  erred  in  rejecting  the  testi- 
mony offered.  The  defendant,  wo  think,  had  a  right  to  show 
that  he  had  manufactured  the  hoops  in  good  faith  and  in  the 
belief  that  he  had  the  proper  authority  to  do  so;  nnd,  if  he 
should  succeed  in  making  that  showing,  he  was  entitled  to  have 
the  jury  instructed  that  the  title  to  the  limber  was  changed  by 
a  substantial  change  of  identity,  and  thr'  the  remndy  of  the 
plaintiff  was  an  action  to  recover  dama'.  os  foi  the  unintentional 
trespass. 

This  view  will  dispose  of  the  case   upon  the  present  record. 
Upon  the  other  points  we  are  not  prepared  to  assent  entirely  to 
the  views  of  the  plaintiff  in  error.     It  does   not  appear  to  us 
important  that  the  deed  from  Sumner  to  Camp  and  Brooks  was 
intended  as  a  mere  security.    Under  such  a  deed  Sumner  would 
have  had  a  right  of  redemption,  but  it  does  not  follow  that  he 
would  have  been  entitled   to  possession  and  to  all   tl      other 
rights  of  mortgagor  in  the  courts  of  law.     When  a  deed  abso- 
lute in  form  is  given  to  secure  a  debt,  the  purpose  generally  is 
to  vest  in  the  grantee  a  larger  power  of  control  and  disposition 
than  h?  would  have  by  statute  under  any  ordinary  mortgage ; 
and  we  are  not  prepared   to  say  that  the   statute,   Comp.  L., 
sec.  4614,  which  forbids  ejectment  by  mor^^ages  before  fore- 
closure was  intended  to  reach  a  case  of  that  description.     We 
think,    however,    that   the    mere    circumstance  of   the  sale    of 
Sumner's  interest  did  not  operate  in  law  as  a  revocation  of  the 
authority  previously  given  to  Sumner  to  sell  the  timber.     It  is 
quite  possible  that  Green  would  not  have   given   his  authority 
had  Sumner  not  been  tenant  in  common  of  the  land  with  him ; 
but  there  is  no  absolute  presumption  of  the  law  to  that  effect ; 
and  we  can  not  say  that  Green  would  have  revoked  the  author- 
ity had  he  been   aware  of  Sumner's  conveyance.      Nor  was  it 
necessary  that  the  license  given  by  Sumner  to  Wetherbee  should 
have  been  in  any  particular   form.     A  mere  license   to  enter 
upon  land  and  cut  timber  does  not  confer  a  legal  right  to  do 
so;  but   it  nevertheless  protects  the  licensee  so  far  as  he  has 
acted  under  it  before  revocation,  and  the   protection  does  not 


1 


224       MODES  OF  OBTAINING  TITLE  TO  PEKSONAL  PROPERTY. 

depend  upon  its  form,  but  upon  what  has  been  done  having 
proceeded  by  consent.  However  informal  the  consent  may 
have  been,  the  landowner  can  not  be  allowed,  by  afterward 
recalling  it,  to  make  the  licensee  a  trespasser  for  what  he  has 
done  in  reliance  upon  it. 

For  the  reasons  given,  the  judgment  must  be  reversed,  with 
costs,  and  a  new  trial  ordered. 

See  note  to  Silsbury  v.  McCoon,  post. 


SILSBURY  V.  McCOON. 

[3  N.  Y.  379;  53  Am.  Dec.  307.] 
Court  of  Appeals  of  New  Tork^  1830. 

Error  to  review  judgment  of  the  supreme  court  in  favor  of 
plaintiffs  in  trover.  6  Hill,  42^,  41  Am.  Dec.  757.  The  action 
was  brough!  by  Samuel  W.  Silsbury  and  Mortimer  Calkins 
against  Cornelius  McCoon  «nd  Benjamin  B.  Sherman.  Th'- 
evidence  on  behalf  of  plaintiffs  showed  that  a  deputy  sheriff 
holding  an  execution  in  favor  of  defendants  and  against  one 
Wood,  came  to  plaintiffs'  distillery,  seized  a  quantity  of  whisky 
as  belonging  to  Wood,  which  he  found  there  in  plaintiffs'  pos- 
session, and  which  they  claimed  as  their  own,  and,in  spite  of  their 
objection,  sold  it  to  defendants,  who  took  it  away.  The  defend- 
ants offered  to  prove  that  the  whisky  in  question  was  made  from 
corn  which  belonged  to  Wood  and  which  plaintiffs  had  taken 
with  knowledge  that  it  was  his  and  had  manufactured  without 
authority  from  him.  The  judge  excluded  this  defense,  holding 
that  Wood's  title  to  the  corn  must  be  deemed  extinguished  by 
its  being  transformed  into  whisky,  and  the  plaintiffs  had  a 
verdict.  On  a  motion  for  a  new  trial  the  court  sustained  this 
ruling. 

By  court,  Ruggles,  J.— It  is  .nn  elementary  principle  in  the 
law  of  all  civilized  communities  that  no  man  can  be  deprived  of 
his  property  except  by  his  own  voluntary  act  or  by  operation  of 
law.  The  thief  who  steals  a  chattel,  or  the  trespasser  who 
takes  it  by  force,  acquires  no  title  by  such  wrongful  taking. 
The  subsequent  possession  by  the  thief  or  the  trespasser   is  a 


ROPERTY. 


SlLSnURY    V.  MCCOON. 


225 


done  having 

consent  may 

by   afterward 

r  what  he  has 

reversed,  with 


rt  in  favor  of 
7.  The  action 
•timer  Calkins 
herman.     Thf* 

deputy  sheriff 
id  against  one 
ntity  of  whisky 
plaintiffs'  pos- 
in  spite  of  their 
.  The  defend- 
vas  made  from 
tiffs  had  taken 
;tured  without 
ifense,  holding 
itinguished  by 
laintiffs  had    a 

sustained  this 

jrinciple  in  the 
be  deprived  of 
3y  operation  of 
trespasser  who 
ongful  taking, 
trespasser   is  a 


continuing  trespass ;  and  if  during  its  continuance  the  wrong- 
doer enhances  the  value  of  the  chattel  by  labor  and  skill 
bestowed  upon  it,  as  by  sawing  logs  into  boards,  splitting 
timber  into  rails,  making  leather  into  shoes,  or  iron  into  bars 
or  into  a  tool,  the  manufactured  article  still  belongs  to  the 
owner  of  the  original  material,  and  he  may  retake  it  or  recover 
its  improved  value  in  an  action  for  damages.  And  if  the 
wrongdoer  sell  the  chattel  to  an  honest  purchaser  having  no 
notice  of  the  fraud  by  which  it  was  acquired,  the  purchaser 
obtains  no  title  from  the  trespasser,  because  the  trespasser  had 
none  to  give.  The  owner  of  the  original  material  may  still 
retake  it  in  its  improved  state,  or  he  may  recover  its  improved 
value.  The  right  to  the  improved  value  in  damages  is  a  con- 
sequence of  the  continued  ownership.  It  would  be  absurd  to 
say  that  the  original  owner  may  retake  the  thing  by  an  action  of 
replevin  in  its  improved  state,  and  yet  that  he  may  not,  if  put 
to  his  action  of  trespass  or  trover,  recover  its  improved  value  in 
damages.  '^'  .'S  far,  it  is  conceded  that  the  common  law  agrees 
with  the  civil. 

They  agree  in  another  respect,  to  wit,  that  if  the  chattel 
wrongfully  taken  afterward  come  into  the  hands  of  an  innocent 
holder,  who,  believing  himself  to  be  the  owner,  converts  the 
chattel  into  a  thing  of  different  species,  so  that  its  identity  is 
destroyed,  the  original  owner  can  not  reclaim  it.  Such  a  change 
is  said  to  be  wrought  when  wheat  is  made  into  bread,  olives 
into  oil,  or  grapes  into  wine.  In  a  case  of  this  kind  the  change 
in  the  species  of  the  chattel  is  not  an  intentional  wrong  to  the 
original  owner.  It  is  therefore  regarded  as  a  destruction  or 
consumption  of  the  original  materials,  and  the  true  owner  is 
not  permitted  to  trace  their  identity  into  the  manufactured 
article  for  the  purpose  of  appropriating  to  his  own  use  the  labor 
and  skill  of  the  innocent  occupant  who  wrought  the  change ; 
but  he  is  put  to  his  action  for  damages  as  for  a  thing  consumed, 
and  may  recover  its  value  as  it  was  when  the  conversion  or 
consumption  took  place. 

There  is  great  confusion  in  the  books  upon  the  question 
what  constitutes  change  of  identity.  In  one  case,  5  Hen.  7,  fol. 
15,  it  is  said  that  the  owner  may  reclaim  the  goods  so  long  as 
they  may  be  known,  or,  in  other  words,  ascertained  by  inspec- 
tion. But  this,  in  many  cases,  is  by  no  means  the  best 
^5 


226      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

evidence  of    identity ;  and   the  examples  put  by  way  of   iHus- 
tration  serve  ratlier  to  disprove  than  to  establish  the  rule.     The 
courts  s.iy  that  if  grain  be  made  into  malt,  it  can  not  be  reclaimed 
by  the  owner,  because  it  can  not  be  known.     But  if  cloth  be 
made  into    a  coat,  a   tree   into  square  timber,  or  iron   into  a 
tool,  it  may.     Now  as  to  the  cases  of  the  coat  and  the  timber, 
they  may  or  may  not  be  capable  of  identification  by  the  senses 
merely ;  and  the  rule  is  entirely  uncertain  in  its  application ; 
and  as  to  the  iron    tool,  it   certainly  can   not   be  identified  as 
made  of  the  original  material  without  other  evidence.     This 
illustration,  therefore,  contradicts  the  rule.     In   another  case, 
Moore's  Rep.    20,  trees  were  made   into  timber,  and  it  was 
adjudged    that   the    owner   of    the   trtes   might  reclaim    the 
timber  "because  the  greater  part  of  the  substance  remained." 
But  if  this  were  the  true  criterion,  it  would  embrace  the   cases 
of  wheat  made  into  bread,  milk  into  cheese,  grain  into  malt, 
and  others  which  are  put  in  the  books  as  examples  of  a  change 
of    identity.     Other   writers   say   that   when    the   thing   is   so 
changed  that  it  can   not  be  reduced  from  its   new  form  to  its 
former  state,  its  identity  is  gone.    But  this  would  include  many 
cases  in  which  it  has  been  said  by  the  courts   that  the  identity 
is  r\ot  gone;   as   the   case   of   leather   made    into  a   garment, 
logs  into   timber  or  boards,  cloth   into  a  coat,  etc.     There  is, 
therefore,  no  definite  settled  rule  on  this  question;  and  although 
the  want  of  such  a  rule  may  create  embarrassment  in   a   case 
in  which  the  owner  seeks   to  reclaim   his  property  from   the 
hands  of  an  honest  possessor,  it  presents  no  difficulty  where  he 
seeks  to  obtain  it  from  the  wrongdoer ;  provided  the  common 
law  agrees  with  the  civil  in   the  principle  applicable  to  such  a 

case. 

The  acknowledged  principle  of  the  civil  law  is  that  a  willful 

wrongdoer  acquires  no  property  in  the  goods  of  another,  either 

by  the  wr  ongful   taking  or  by  any  change  wrought  in  them  by 

his  labor  or  skill,  however  great  that  change  may  be.     The 

new  product,  in  its  improved  state,  belongs  to  the  owner  of  the 

orig  inal   materials,  provided  it  be  proved  to  have  been  made 

from  them  ;  the  trespasser  loses  his  labor,  and  that  change  which 

is  re  garded  as  a  destruction  of  the  goods,  or  an   alteration  of 

their  identity  in  favor  of  an  honest  possessor,  is  not  so  regarded 

as  between  the  original  owner  and  a  ^'^  n'licu  violator  of  his  right 

of  property. 


:rty. 


SILSBURY   V.   MCCOON. 


327 


of  illus- 
ile.  The 
reclaimed 

cloth  be 
on  into  a 
le  timber, 
the  senses 
iplication ; 
entified  as 
ce.  This 
ther  case, 
nd  it  was 
claim  the 
emained." 

the  cases 
into  malt, 
f  a  change 
ling  is  so 
orm  to  its 
lude  many 
he  ident'ty 
I   garment, 

There  is, 
id  although 

in  a  case 

from  the 
Y  where  he 
he  common 
;  to  such  a 

lat  a  willful 
ather,  either 
in  them  by 
y  be.  The 
(wner  of  the 
been  made 
iiange  which 
ilteration  of 
so  regarded 
■  of  his  right 


These  principles  are  to  be  found  in  the  digest  of  Justinian, 
lib.    10,  tit.  4,  leg.  12,  sec.  3.     "If  any  one  shall  make  wine 
P  with  my  grapes,  oil  with  my  olives,  or  garments  with  my  wool, 

knowing  they  are  not  his  own,  he  shall  be  compelled  by  action 
to  produce  the  said  wine,  oil,  or  gjirments."  So  in  Vinnius* 
Institutes,  tit.  i,  pi.  25:  "He  who  knows  the  material  is 
another's  ought  not  to  be  considered  in  the  same  light  as  if  he 
had  made  the  species  in  the  name  of  the  owner,  to  whom  also 
he  is  to  be  understood  to  have  given  his  labor." 

The  same  principle  is  stated  by  Puffendorf  in  his  Law  of 
Nature  and  of  Nations,  b.  4,  ch.  7,  sec.  10,  and  in  Wood's 
Institutes  of  the  Civil  Law,  p.  92,  which  are  cited  at  large  in 
the  opinion  of  Jewett,  J.,  delivered  in  this  case  in  the  supreme 
court,  4  Denio,  33S,  and  which  it  is  unnecessary  here-  to 
repeat.  In  Brown's  Civil  and  Admiralty  Law,  p.  240,  the 
writer  states  the  civil  law  to  be  that  the  original  owner  of  any- 
thing improved  by  the  act  of  another  retained  his  ownership 
in  the  thing  so  improved,  unless  it  was  changed  into  a  ditferent 
species;  as  if  his  grapes  were  made  into  wine,  the  wine 
belonged  to  the  maker,  who  was  only  obliged  to  pay  the 
owner  for  the  value  of  his  grapes.  This  species,  however, 
must  be  incapable  of  being  restored  to  its  ancient  form ;  and 
the  materials  must  have  been  taken  in  ignorance  of  their  being 
the  property  of  another. 

But  it  was  thought  in  the  court  below  that  this  doctrine  had 
never  been  adopted  into  the  common  law,  either  in  England  or 
here;  and  the  distinction  between  a  willful  and  an  involuntary 
wrongdoer  hereinbefore  mentioned  was  rejected,  not  only  on 
that  ground,  but  also  because  the  rule  was  supposed  to  be  too 
harsh  and  rigorous  against  the  wrongdoer. 

It  is  true  that  no  case  has  been  found  in  the  English  books 
in  which  that  distinction  has  been  expressly  recognized ;  but 
it  is  equally  true  that  in  no  case  until  the  present  has  it  been 
repudiated  or  denied.  The  common  law  on  this  subject  was 
evidently  borrowed  from  the  Roman  at  an  early  day,  and  at  a 
period  when  the  common  law  furnished  no  rule  whatever  in  a 
case  of  this  kind.  Bracton,  in  his  treatise  compiled  in  the 
reign  of  Henry  III.,  adopted  a  portion  of  Justinian's  Institutes 
on  this  subject  without  noticing  the  distinction;  and  Blackstone 
in  his  Commentaries,  vol.  2,  p.  404,  in  stating  what  the  Roman 


X 


2jS       MODES  OF  OBTAINING  TITLE  TO  PERSONAL   PROPERTY. 

law  was,  follows  Biacton,  but  neither  of  these  writers  intimates 
that  on  the   point  in   question  there  is  any  difference  between 
the  civil  and  the  common  law.     The  authorities  referred  to  by 
Blackstone  in  support  of  his  text  are  three  only.     The  first  in 
Brook's  Abridgment,    tit.    Property  23,  is  the  case    from    the 
Year   Book   5  II.    7,  fol.    15  (translated  in  a  note  to  4  Denio, 
3^5),  in  which  the  owner  of  leather  brought  trespass  for  taking 
slippers  and  boots,  and  the  defendant  pleaded  that  he  was  the 
owner  of  the  leather  and  bailed  it  to  J.  S.,  who  gave  it  to  the 
plaintiff,  who  manufactured  it  into  slippers  and  boots,  and  the 
defendant  took  them  as  he  lawfully  might.     The  plea  was  held 
good  and  the  title  of  the  owner  of  the  leather  unchanged.     The 
second  reference  is  to  a   case  in  Sir  Francis  Moore's  reports, 
pagi    .  3,  in  which  the  action  was  trespass  for  taking  timber,  and 
the  defendant  justified  on  the  ground  that  A.   entered  on  his 
land  and  cut  down  trees  and  made  timber  thereof,  and  carried 
it  to  the   place  where    the   trespass   was  alleged  to   have    been 
committed,  and  afterward  gave  it  to  the    plaintiff,  and  that  the 
defendant,  therefore,  took  the  timber  as  he  lawfully  might.     In 
these    cases   the   chattels   had    passed  from  the   hands  of    the 
original  trespasser  into  the  hands  of  a  third  person ;  in  both  it 
was  held   that  the  title  of  the  original  owner  was  unchanged, 
and  that  he  had  a  right  to  the    property  in  its  improved  state 
ao-ainst  the  third  person  in  possession.     They  are  in  conformity 
with  the  rule  of  the  civil  law ;  and  certainly  fail  to  prove  any 
difference  between  the  civil  and  the  common  law  on   the  point 
in  question.     The  third  case   cited  is  from  Popham's  reports, 
page  38,  and  was  a  case  of  confusion  of  goods.     The  plaintiff 
voluntarily  mixed  his  own  hay  with  the  hay  of  the  defendant, 
who  carried  the  whole  away,  for  which  he  was  sued  in  trespass ; 
and  it  was  adjudged  that  the  whole  should  go  to  the  defendant 
and  Blackstone  refers  to  this  case  in  support  of  his  text,  that 
"our  law   to  guard   against  fraud  gives   the   entire  property, 
without  any  account,  to  him  whose  original  dominion  is  invaded 
and    endeavored   to   be  rendered    uncertain    without    his  own 
consent."     The  civil  law  in  such   a  case  would  have  required 
him  who  retained  the  whole  of  the  mingled  goods  to  account  to 
the   other  for  his  share.     Just.  Inst.,  lib.  3,  tit.  i,  sec.  28;  and 
the  common  law  in  this  particular  appears  to  be  more  rigorous 
than  the  civil ;  and  there  is  no   good  reason  v/hy  it  should  be 


;kty. 


sii.sm-RY  V.  MCCOOX. 


239 


intimates 

between 
red  to  by 
he  first  in 
from    the 

4  Denio, 
for  taking 
le  was  the 
e  it  to  the 
s,  and  the 
I  was  held 
?ed.     The 
s  reports, 
mber,  and 
red  on  his 
nd  carried 
lave    been 
id  that  the 
might.     In 
ids  of    the 

in  both  it 
mchanged, 
'ovcd  state 
conformity 

prove  any 
the  point 
I's  reports, 
he  plaintiff 
defendant, 
in  trespass ; 
B  defendant 
is  text,  that 
e  property, 
1  is  invaded 
it    his  own 
ve  required 
)  account  to 
ec.  28;  and 
)re  rigorous 
t  should  be 


less  so  in  a  case  like  that  now  in  hand,  where  the  necessity  of 
guarding  against  fraud  is  even  greater  than  in  the  case  of  a 
mingling  of  goods,  because  the  cases  are  likely  to  be  of  more 
frequent  occurrence.  Even  this  liability  to  account  to  him  whose 
conduct  is  fraudulent  seems  by  the  civil  law  to  be  limited  to 
cases  in  which  the  goods  are  of  such  a  nature  that  they  may  be 
divided  into  shares  or  portions,  according  to  the  original  right 
of  the  parties ;  for  by  that  law,  if  A.  obtained  by  fraud  the 
parchment  of  B.  and  write  upon  it  a  poem,  or  wrongfully  take 
his  tablet  and  paint  thereon  a  picture,  B.  is  entitled  to  the  written 
parchment  and  to  the  painted  tablet,  without  accounting  for  the 
value  of  the  writing  or  of  the  picture.  Just.  Inst.,  lib.  2,  tit. 
I,  sees.  23,  24.  Neither  Bracton  nor  Blackstone  have  pointed 
out  any  difference,  except  in  the  case  of  confusion  of  goods, 
between  the  common  law  and  the  Roman,  from  which  on  this 
subject  our  h-v  has  mainly  derived   its  principles. 

So  long  as  property  wrongfully  taken  retains  its  original 
form  and  substance,  or  may  be  reduced  to  its  original  materials, 
it  belongs,  according  to  the  admitted  principles  of  the  common 
law,  to  the  original  owner,  without  reference  to  the  degree  of 
improvement,  or  the  additional  value  given  to  it  by  the  labor 
of  the  wrongdoer.  Nay,  more,  this  rule  holds  good  against  an 
innocent  purchaser  from  the  wrongdoer,  although  its  value  be 
increased  an  hundred-fold  by  the  labor  of  the  purchaser.  This 
is  a  necessary  consequence  of  the  continuance  of  the  original 
ownership. 

There  is  no  satisfactory  reason  why  the  wrongful  conversion 
of  the  original  materials  into  an  article  of  a  different  name  or  a 
different  species  should  work  a  transfer  of  the  title  from  the 
true  owner  to  the  trespasser,  provided  the  real  identity  of  the 
thing  can  be  traced  by  evidence.  The  difficulty  of  proving  the 
identity  is  not  a  good  reason.  It  relates  merely  to  the  con-  _ 
venience  of  the  remedy,  and  not  at  all  to  the  right.  There  is 
no  more  difficulty  or  uncertainty  in  proving  that  the  whisky 
in  question  was  made  of  Wood's  corn,  than  there  would  have 
been  in  proving  that  the  plaintiff  had  made  a  cup  of  his  gold, 
or  a  tool  of  his  iron ;  and  yet  in  those  instances,  according  to 
the  English  cases,  the  proof  would  have  been  unobjectionable. 
In  all  cases  where  the  new  product  can  not  be  identified  by 
mere  inspection,  the  original  material  must  be  traced  by  the 


230      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

testimony   of   the    witnesses  from  hand   to   hand  through  the 
process  of  transformation. 

\gain.     The  court  below  seem  to  have  rejected  the  rule  ot 
the  civil  law  applicable  to   this  case,  and  to  have   adopted  the 
principle  not  heretofore  known  to  the  common   law ;  ano  for 
the  reason  that  the  rule  of  the  civil   law  wa.  too  rigorous  upon 
the   wrongdoer,  in  depriving  him  of  the  benefit  of  h.s    abor 
bestowed  upon  the  goods  wrongfully  tak.n.     But  we  think  the 
civil  law  in  this  respect  is  in  conformity,  not  only   with  plam 
principles  of   morality,    but  supported  by    cogent    reasons  of 
public  policy;  while  the  rule  adopted  by  the  court  below  leads 
to  the  absurdity  of  treating  the  willful  trespasser   with  greater 
kindness  and  mercy  than  it  shows  to  the  innocent  possessor  of 
another  man's  goods.     A  single  example  may  suffice  to  prove 
this  to  be  so.  A  trespasser  ta'  .s  a  quantity  of  iron  ore  belonging 
to  another  and  converts  it   into  iron,  thus  changing  the  spec.es 
and  identity  of  the   article  ;  the  owner  of  the  ore  may  recover 
its  value,  in  trover  or  trespass;  but  not  the   value  of   the  iron, 
because  under  the  rule  of  the  court  below  it  would  be  unjust 
and  rigorous  to  deprive  the  trespasser  of  the  value  of  his  labor 
in   the  transmutation.     But   if  the  same  trespasser  steals  the 
iron  and  sells  it  to  an  innocent   purchaser,  who  work-  -^  into 
cutlery,   the  owner  of   the  iron  may  recover  of  t         -rchaser 
the  value  of  the  cutlery,  because  by   this   process  me  original 
material  is  not  destroyed,  but  remains,  and  may  be  reduced  to 
its  former  state ;  and  according  to  the  rule  adopted  by  the  court 
below  as  to  the  change  of  identity  the  original  ownership  remains. 
Thus   the    innocent   purchaser  is  deprived  of  the  value  of  his 
labor,  while  the  guilty  trespasser  is  not. 

The  rule  adopted  by  the  court  below  seems,  therefore,  to  be 
objectionable,  because  it  operates  unequally  and  unjustly.  It 
not  only  divests  the  true  owner  of  his  title  without  his  consent, 
'but  it  obliterates  the  distinction  maintained  by  the  civil  law, 
and,  as  we  think,  by  the  common  law,  between  the  guilty  and 
the  innocent,  and  abolishes  a  salutary  check  against  violence 
and  fraud  upon  the  rights  of  property. 

We  think,  moreover,  that  the  law  on  this  subject  has  been 
settled  by  judicial  decisions  in  this  country.  In  Eetts  v.  Lee,  5 
Johns.  349,  it  was  decided  that  as  against  a  trespasser  the  orig- 
inal owner  of  the  property  may  seize  it  in  its  new   shape,  what- 


SILSBURY    V.   MCCOON. 


431 


ever  alteration  of  form  it  may  have  undergone,  if  he  can  prove 
the  identity  of  the  original    materials.      That    was    a   case    in 
which  the  defendant  had  cut  down  the  plaintiff's  trees  and  made 
them  into  shingles.     The  property  could  neither  be    identified 
by  inspection  nor  restored  to  its  original  form,  but  the    plaintiff 
recovered  the  value  of  the  shingles.     So  in  Curtis  v.  Groat,  6 
Johns.  169,  a  trespasser  cut  wood  on  another's  land  and  convert- 
ed it  into  charcoal.     It  was  held  that  the  charcoal  still  belonged 
to  the  owner  of  the  wood.     Here  was  a  change  of  the  wood  in- 
to an  article  of  different  kind  and  species.     No  part  of  the  sub- 
stance of  the  wood  remained  in  its  original  state ;    its  identity 
could  not  be  ascertained  by  the  senses,  nor  could  it  be  restored 
to  what  it  originally  was.     That   case  distinctly  recognizes  the 
principle  that  a  willful  trespasser  cannot  acquire  a  title  to  prop- 
erty merely  by  changing  it  from  one  species  to  another.       And 
the  late  Chancellor  Kent,  in  his  Commentaries,  vol.  2,  p.  363, 
declares  that  the  English  law  will  not  allow  one  man   to    gain 
a  title  to  the  property  of  another  upon  a  principle  of  accession, 
if  he  took  the  other's  property  willfully    as   a   trespasser;  and 
that  it  was  settled  as  early  as  the  time  of  the  year   books,    that 
whatever  alteration  of  form  any  property   had    undergone,   the 
owner  might  seize  it  in  its  new  shape,  if   he   could   prove  the 
identity  of  the  original  materials. 

The  same  rule  has  been  adopted  in  Pennsylvania.  Snyder 
v.Vaux,  2  Rawle,  427.  And  in  Maine  and  Massachusetts  it 
has  been  applied  to  a  willful  intermixture  of  goods.  Ryder  v. 
Hathaway,  21  Pick.  304,  5 ;  Wingate  v.  Smith,  7  Shep.  2S7; 
Willardv.  Rice,  11  ^ietc.  493. 

We  are  therefore  of  opinion  that  if  the  plaintiffs  below,  in 
converting  the  corn  into  whisky,  knew  that  it  belonged  to  Wood, 
and  that  they  were  thus  using  it  in  violation  of  his  right,  they 
acquired  no  title  to  the  manufactured  article,  which,  although 
changed  from  the  original  material  into  another  of  different 
nature,  yet,  being  the  actual  product  of  the  corn,  still  belonged 
to  Wood.  The  evidence  offered  by  the  defendants  and  rejected 
by  the  circuit  judge  ought  to  have  been  admitted. 

The  right  of  Wood's  creditors  to  seize  the  whisky,  by  their 
execution,  is  a  necessary  consequence  of  Wood's  ownership. 
Their  right  is  paramount  to  his,  and  of  course  to  his  election 
to  sue  in  trover  or  trespass  for  the  corn. 


233       MODF.S  OF  OmAINlNG  TITLE  TO  PERSONAL  PROPEUTY. 

The  judgment  of  the  supreme  court  sliould  be  reversed,  and 
a  new  trial  ordered. 

Gardiner,  Jevvett,  Ilurlbut,  and  Pratt,  JJ.,  concurred. 

Consult— Snvder  v.  Vaux,  2  Rawle,  427;  Belts  v.  Lee,  5  Johns.  34S; 
Curtis  V.  Groat^6  Johns.  16S;  Brown  v.  Sax,  7  Cow.  95;  Bahcock  v. 
Gill,  10  Johns.  2S7;  I'ulsiferv.  Page,  32  Me.  404.  54  Am.  Dec.  f,S2 ; 
Hinman  v.  lle>derstadt,  32  Minn.  250;  Nesbitt  v.  St.  Paul  Ice  Co.,  21 
Minn.  491. 


§  49.    Confusion  of  goods  through  fraud. 

JEWETT  V.  DRINGER. 

[30  N.  J.  Eq.  291.] 

Court  of  Errors  and  Appeals  of  New  Jersey,  1878. 

A  junk  dealer  by  fraudulent  collusion  with  the  employees  of 
a  railroad  corporation  obtained  large  quantities  of  old  iron,  etc., 
at  much  less  than  the  actual  weight  or  value.  On  delivery  it 
was  thrown  indiscriminately  on  other  heaps  of  old  iron,  etc., 
belonging  to  him,  so  as  to  be  indistinguishable.  The  bill  was 
filed  by  the  receiver  of  the  railroad  corporation. 

DoDD,  J.— As  to  Dringer  the  case  is  one  of  fraudulent  pro- 
curing and  intermixture  of  the  company's  goods  with  his  own. 
The  goods  thus  procured  and  intermingled  were  of  different 
kinds  and  values,  and  can  not  be  distinguished  as  to  enable 
those  of  one  owner  to  be  separated  from  those  of  the  other. 
The  rule  applicable  to  the  case  is  well  settled  by  authority  and 
in  accordance  with  natural  justice. 

In  Luptonv.  White,  15  Ves.  433,  Lord  Eldon  states  the  old 
law  to  be,  that  if  one  man  mixes  his  corn  or  flour  with  that  of 
another  and  they  were  of  equal  value,  the  latter  must  have  the 
given  quantity;  but  if  articles  of  different  value  are  mixed,  pro- 
ducing a  third  value,  the  aggregate  of  both,  and,  through  the 
fault  of  the  person  mixing  them,  the  other  party  can  not  tell 
what  was  the  original  value  of  his  property,  he  must  have  the 
whole.  The  observations  of  Sir  William  Blackstone  are  cited 
in  the  note  pointing  out  the  distinction  between   the   civil   law 


UTY. 

rsctl,  and 

>ncurrcd. 

ohns.  34S; 
Jabcock  V. 
Dec.  f,S2; 
ce  Co.,  21 


PRATT    V.   nUY.WT. 


233 


T878. 

ployces  of 
iron,  etc., 
ilclivciy  it 
iron,  etc., 
,>  bill  was 


ulent  pro- 
i  his  own. 
f  different 
to  enable 
the  other, 
hority  and 

tes  the  old 
ith  that  of 
t  have  the 
nixed,  pro- 
u'ough  the 
n  not  tell 
it  have  the 
e  are  cited 
;   civil   law 


and  our  own  law  upon  this  point;  the  civil  law,  though  giving 
the  aggregate  to  tlic  party  who  did  not  interfere  in  the  mixture, 
allowed  the  other  a  satisfaction  for  his  loss.  "But  our  law," 
says  Biackstone,  "to  guard  against  fraud  gives  the  entire  prop- 
erty, without  any  account,  to  him  whose  original  dominion  is 
invaded  and  endeavored  to  be  rendered  uncertain  without  his 
consent."  In  Hart  v.  Ten  Eyck,  5  Johns.  Ch.  108,  it  is  ruled 
that  if  a  party  having  charge  of  the  property  of  others  so  con- 
founds it  with  his  own  that  the  line  of  distinction  can  not  be 
traced,  all  the  inconvenience  of  the  confusion  is  thrown  upon 
the  party  who  produced  it,  and  it  is  for  him  to  distinguish  his 
own  property  or  lose  it.  If  it  be  a  case  of  damages,  damages 
are  given  to  the  utmost  value  that  t'.ie  article  will  bear.  The 
same  doctrine  is  expressed  and  applied  in  Providence  Rubber 
Co.  V.  Goodyear's  Ex'r,  9  Wall.  9SS;  The  Idaho,  3  Otto,  5S6 ; 
Wooley  v.  Campbell,  S  Vr.  169.  In  the  last  cited  case  the 
language  of  Justice  Depue  is,  that  the  doctrine  that  one  mixing 
hisVotls  with  those  of  another  so  that  a  separation  is  impossi- 
ble, loses  his  property,  is  a  doctrine  that  is  adopted  to  prevent 
fraud.  It  is  never  resorted  to  except  in  favor  of  an  innocent 
party  as  against  a  wrongdoer. 

The  court  ordered  that  the  whole  mass  be  forfeited  to  the 
corporation. 

CoNSULT-Wingate  v.  Smith,  20  Me.  287;  Beach  v.  Schmultz,  20  111. 
1S6;  McDowell  V.  Russell,  37  Pa-  St-  ''^a;  Rvder  v.  Hathaway,  21  Pick. 
20S;  The  Idaho,  93  U.  S.  575!  Stephenson  v.  Little,  10  Mich.  433; 
Tenkins  v.  Steanka,  19  Wis.  126,  88  Am.  Dec.  675;  WiUard  v.  Rice,  11 
Met.  493,  45  Am.  Dec.  226;  Robinson  v.  Holt,  39 ^f-  H-  5i7,  75  Am.  Dec. 
233-  Allev  V.  Adams,  44  Ala.  609;  Davis  v.  Krum,  12  Mo.  (App.)  279. 


§  50.  Confusion  of  goods  through  accident,  mistake,  or  by 
consent. 

PRATT  V.  BRYANT. 

[20  Vt.  333.] 

Supreme  Court  of  Vermont,  1848. 

.The  plaintiff,  believin-  that  there  was  a  contract  between 
himself  and  the  defendants  for  the  delivery  of  a  quantity  of 
wood— although  in  fact  no  such  contract  had  been  concluded— 


234 


MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PKOPERTY. 


placed  a  quantity  of  wood  upon  the  premises  of  the  defendants, 
where  it  was  so  intermingled  with  other  wood  belonging  to  the 
(Ufcndants  that  it  could  not  be  distinguished.  The  defendants, 
when  called  upon  for  payment,  denied  having  contracted  for  the 
wood.  The  plaintiff  then  offered  to  take  the  wood  away  and 
the  defendants  told  him  he  might,  but  that  he  must  be  careful 
that  he  did  not  take  away  any  wood  belonging  to  them.  In 
consequence  of  the  wood  being  intermingled,  the  plaintiff  was 
unable  to  select  his  wood  from  the  mass  and  did  not  take  any 
away,  and  the  wood  was  all  used  by  the  defendants ;  but  at 
what  time  did  not  appear. 

Redkield,  J. — This  does  not  seem  to  be  such  a  case  of  fraud- 
ulent commixture  of  goods  as  to  produce  a  forfeiture  on  the 
part  of  the  plaintiff.  The  rule  laid  down  by  Justice  Norton  in 
Ryder  v.  Hathaway,  3i  Pick.  298,  seems  to  us  to  be  the  true 
rule  upon  the  subject, — that  if  the  intermixture  were  inten- 
tional, but  by  some  mistake  of  the  facts,  the  property  was  not 
lost.  That  seems  to  be  the  present  case.  The  plaintiff  supposed 
he  had  made  a  contract  of  sale;  but  in  fact  he  had  not.  This 
was  his  innocent  mistake.  He  may  therefore  recover  either  his 
property  or  the  pay  for  it.  He  should  first  show  a  demand  and 
refusal,  unless  the  defendant  have  used  it,  knowing  it  to  belong 
to  the  plaintiff,  which  is  not  this  case.  If  the  defendant  use  it 
by  mistake  or  refused  to  suffer  the  plaintiff  to  take  it  away, — 
one  of  which  is  virtually  true  in  this  case, — he  is  liable  in 
trover ;  or  if  he  have  sold  the  property  and  received  money  for 
it,  the  plaintiff  may  waive  the  tort  and  sustain  assumpsit  for 
the  money.    3i  Pick.   306,  citing  Bond  v.  Ward,  7  Mass.   137. 

But  we  think  no  action  of  assumpsit  will  lie,  unless  in  a  case 
like  the  one  last  put,  or  when  there  has  been  a  sale,  either 
express  or  implied,  and  that  the  action  of  book  account  could 
not  with  the  least  propriety  be  extended  to  a  case  like  the 
present.  The  present  case,  upon  the  most  favorable  construction 
for  the  pla'':iiff,  is  the  putting  of  his  wood  with  the  defend- 
ant's, under  a  mistake  of  facts,  without  the  fault  of  the 
defendant.  There  was  no  contract  of  sale ;  but  the  contrary 
is  expressly  found.  We  are  to  understand  that  the  plaintiff 
was  not  justified  in  supposing  there  was  any  contract  of  sale 
closed,  for  if  that  were  the  case  it  would  amount  to  a  contract. 


IMIATT    V.   HKYANT. 


-33 


The   fault,  then,  was  that  of  the    plaintiff,  but  not   willful  or 
fraudulent,  hut  negligent. 

Can  the  plaintiff,  then,  be  considered  in  any  more  favorable 
light  than  if  he  had  left  his  wood  upon  the  defendant's  land  as  a 
naked  deposit,  and  the  defendant  had  used  it  without  his  con- 
sent. And  in  no  such  case  could  an  action  of  book  account  be 
maintained.  Nor  could  such  action  be  maintained  upon  the 
defendant's  refusal  to  deliver  the  wood  upon  request,  or  to 
permit  the  plaintiff  to  remove  it.  This  action  will  never  lie 
for  damages  sustained  by  reason  of  any  breach  of  duty  as  a 
bailee,  whatever  be  the  character  of  the  bailment.  Nor  will 
this  action  lie  to  recover  damages,  which  are  in  their  nature  the 
result  of  a  tort.  The  only  ground  of  recovery  here  is  for  the 
defendant's  refusal  to  allow  the  plaintiff  to  take  away  so  much 
wood  as  he  put  there  by  mistake.  This  they  should  have 
done;  but  their  refusal  was  a  mere  tort;  and  the  damages 
could  no  more  be  recovered  in  this  action  than  in  all  cases  of 
conversion  of  personal  chattels. 

There  are,  in  our  opinion,  strong  reasons,  in  the  justice  of  the 
case,  why  this  action  should  not  be  extended  to  a  case  like  the 
present.  The  commixture  is  not  without  the  fault  of  the 
plaintiff,  although  not  fraudulent  in  such  a  sense  as  to  work 
a  forfeiture.  In  all  such  cases  the  c'  i- nant  will  be  supposed 
to  be  first  in  fault,  in  mixing  his  goods  with  his  neighbor's,  and 
to  be  wholly  conversant  of  the  facts.  To  allow  him,  then,  to 
come  into  court  for  redress,  upon  the  force  of  his  own  testi- 
mony, and  virtually  excluding  the  innocent  party,  who  is  not 
supposed  to  have  equal  knowledge  of  the  fact,  not  having  been 
present  at  the  time  of  the  commixture,  will  be  to  allow  a  party 
to  derive  a  positive  advantage  from  his  own  wrong.  It  is 
sufficiently  favorable  to  the  plaintiff  to  relieve  him  from  the 
forfeiture  and  to  allow  him  to  recover  upon  common  law  proof. 
Judgment  reversed  and  judgment  for  defendants. 

Consult— As  to  mistake:  Thome  v.  Colton,  27  la.  425;  Weymouth 
V  R.  Co.,  17  Wis.  550,  84  Am.  Dec.  763;  Winchester  v.  Craig,  33  Mich. 
205;  Smith  V.  Sanborn,  6  Gray,  134;  Davis  v.  Krum,  12  Mo.  (App.)  279; 
Ryder  V.  Hathaway,  21  Pick.  298;  Stone  v.  Quaale,  36  Minn.  46;  Pear- 
son V.  Inlow,  20  Mo.  322 ;  Farwell  v.  Price,  30  Mo.  587. 

As  to  accident:     Moore  v.  R.  Co.,  7  Lans.  39;  Sharp  v.  U.  S.,  12  Ct. 
of  CI.  638;  Bryant  v.  Ware,  30  Me.   298;  Leonard  v.  Belknap,  47  Vt. 

As  to  consent:  White  v.  Brooks,  43  N.  H.  402;  Dale  v.  Olmstead,  36 
III.  150,  8s  Am.  Dec.  397.  4'  !"•  344- 


2T^C^       MOnr.S  OK  OIlT.MXINd  TITI.K  TO  I'KUSOVAI.  PROPRRTY. 

j»  51.    Same— Rule  where  goods  are  of  equal  value. 
HESSELTINE  v.  STOCKWELL. 

[30  Me.  237.] 
Supreme  Judicial  Court  of  Mai m\  1849. 

.Shf.pi.ky,  C.  J. — Tins  was  nn  .action  of  trover  brought  to  re- 
cover the  value  of  certain  pine  logs.  The  logs  appear  to  have 
composed  a  part  of  a  larger  lot  estimated  to  contain  more  than 
six  hundred  thousand  feet,  which  were  cut  and  hauled  by 
Leander  Preble.  The  case  states  th.it  there  was  testimony 
tending  to  prove  that  Treble  cut  on  his  land  about  six  hundred 
thousand  feet  of  pine  lumber,  and  also  cut  on  the  land  of  the 
plaintiff  about  jWC  hundred  thousand  feet  of  pine  lumber  of  a 
similar  ciuality,  all  of  which  logs  were  marked  with  the  same 
mark  and  hauled  and  landed  on  the  same  landing  place.  With 
other  instructions  the  jury  were  instructed  "that  it  did  not 
appear  that  any  question  of  confusion  of  property  arose  in  the 
action." 

What  will  constitute  a  confusion  of  goods  has  been  the  sub- 
ject of  much  discussion,  and  it  has  become  a  (juestion  of  much 
interest  to  the  owners  of  lands  upon  which  there  are  timber 
trees,  as  well  as  to  those  persons  interested  in  the  lumbering 
business,  whether  the  doctrine  can  be  applicable  to  the  inter- 
mixture of  logs. 

When  there  has  been  such  an  intermixture  of  goods  owned 
by  different  persons  that  the  property  of  each  can  no  longer  be 
distinguished,  what  is  denominated  a  confusion  of  goods  has 
taken  place.  And  this  may  take  place  with  respect  to  mill 
logs  and  other  lumber.  IJut  it  can  do  so  only  upon  proof  that 
the  property  of  each  can  no  longer  be  distinguished.  That  the 
doctrine  might  be  applicable  to  mill  logs  is  admitted  in  the 
case  of  Loomis  v.  Green,  7  Greenl.  393.  The  case  of  Wingate 
V.  Smith,  30  Maine,  387,  has  been  alluded  to  as  exhil  ■Mn<: 
different   doctrine;    but   the    case   does    not    authori -■  .1 

conclusion.      The  instructions  were,   "that  merely  ,  the 

mill  logs  and  fraudulently   mixing   them  with  the  (        ulant's 
logs  would  not  constitute  confusion  of  goods."      These  instrui 
tions  w  ere  and  clearly  must  have  been  approved  ;  for  an  add 


nxY. 


llKSSKI/riNK    V.   STOtKWKI.L. 


ii7 


gilt  to  rc- 
ir  to  liavc 
no  re  than 
hauled  by 
testimony 
c  hundred 
md  of  the 
mlier  of  a 
the  same 
:e.  With 
t  did  not 
ose  in  the 

1  the  sub- 
1  of  much 
re  timber 
lumbering 
the  inter- 

ids  owned 
longer  be 
goods  has 
ect  to  mill 
proof  that 
That  the 
:ted  in  the 
if  Wingatc 
:hil  'Mn<: 

a 

,  the 

iidant's 

!se  iii-<trui 

r  an  addi- 


tional  element  was  required  that  the  mixture  shouUl  have  been 
of  such  a  character  that  the  property  of  each  could  no  longer  be 
distinguished.  The  opi.uon  merely  refers  with  appr..bat.ou  lo 
the  ca.e  of  llydgr  V.  Hathaway,  zi  Pick.  z<)S,  -.vul  says,  "the 
principles  there  stated  would  authorize  the  instructions  which 
were  given  on  that  point  in  this  case." 

The  common  law,  in  opposition  to  the  civil  law,  assigns  the 
whole  propertv,  without  liability  to  account  for  any  part  of  it, 
to  the  innocen't  party,  when  there  has  been  a  confusion  of  goods, 
except  in  certain  cases  or  conditions  of  property.  Chancellor 
Kent  correctly  observes  that  the  rule  is  carried  no  further  than 
necessity  re(iuires.      3  Kent's  Com.  365. 

There   is,  therefore,  no  forfeiture  of  the  goods  of  one  who 
voluntarily  and  without  fraud  makes  such  an  admixture.     Ah 
when,  for  example,  he  supposes  all  the  goods  to  be  his  own,  or 
when  he  does  it  by  mistake.     And  there  is  no  forfeiture  in  case 
of  a  fraudulent  intermixture  when  the  goo.ls  intermixed  are  of 
ecunl  value.     This  has  not  been  of  sutlkient  notice,  and  yet  it 
is  a   iust  rule,   and    is    fully  sustained  by   authority.       Lord 
Eldon,  in  the  case  of  Lupton  v.  White,  15  Ves.  442,  states  the 
law  of  the  old  decided  cases  to  be,  "if  one  man  mixes  his  corn 
or  Hour  with  that  of  another,  and  they  were  of  equal  value,  the 
latter  must  have  the  given  quantity  ;  but  if  articles  of  a  different 
value  are  mixed,  producing  a  third  value,  the  aggregate  of  the 
whole,  and,  through  the  fault  of  the  person  mixing  them    the 
other  party   can   not  tell   what  was  the   original  value  of   his 
property,  he  must  have  the  whole."     This  doctrine  is  stated 
with   approbation  by  Kent.     2  Kent's  Com.  S^S-     It  is  agam 
stated  in  the  case  of  Ryder  v.  Hathaway.     The   opinion  says, 
-if  they  were   of  equal  value,   as  corn  or  wood  ot  the  same 
kind,  the  rule  of  justice  would  be  obvious.     Let  each  one  take 
his  own  given  quantity.    But  if  they  were  of  unequal  value    the 
rule  would  be  more  difficult."     In  the  case  of  W  .Hard  v.  Rice, 
II  Mete.  493,  the  question  whether  palmleaf  hats,  which  were 
intermixed,  were  of  equal  value,  does  not  appear  to  have  been, 
although  it  would  seem  that  it  might  have  been  made.     The 
case  is  not,  therefore,  opposed  to  the  doctrine  here  stated.    The 
doctrine  is  noticed  in  the  cases  of  Hart  v.  Ten  Eyck,  2  Johns. 
Ch.  62;  Ringgold  V.  Ringgold,  i  Har.  and  Gill.  11 ;  Bracken- 
ridge  v.  Holland,  2  Blackf.  377. 


238      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

If  no  logs  were  cut  upon  land  owned  by  the  phiintiff,  no 
question  could  have  arisen  of  confusion  of  goods.  The  jury 
were  required  by  the  instructions  to  find  only,  that  none  of  those 
taken  by  the  defendant  were  cut  on  plaintiff's  land.  They 
were  not  required  to  find  that  no  logs,  composing  the  whole  lot 
of  six  or  seven  hundred  thousand  feet,  were  cut  on  the  plain- 
tiff's land. 

If  Preble  wrongfully  cut  any  logs  on  land  owned  by  the 
plaintiff,  and  mixed  them  with  logs  cut  on  his  own  land,  so  that 
they  could  not  be  distinguished,  a  question  respecting  confusion 
of  goods  might  properly  have   arisen.     The  admixture  might 
have   been   of   such   a    character  that  the  who'e   lot  of  logs, 
including  those  in  the  possession  of  the  defendant,  might  have 
become   the  property  of  the  plaintiff.     Or  it  might  have  been 
of  such  a  character,  the   logs  being  of  equal  value,  that  the 
plaintiff  would   have  been  entitled  to  recover  from  any  one  in 
possession  of  those  logs  or  of  a  part  of  them,  such  proportion 
of  them,  as  the  logs  cut  upon  his  land  bore  to  the  whole  number. 
While  the  facts  reported  might  not  necessarily  prove  a  con- 
fusion of  goods,  if  part  of  the  whole  lot  of  logs  were  cut  upon 
land  owned  by  the  plaintiff,  they  riigb*^^  have  1  een  sufficient  to 
raise  that  question,  and  to  present  it  for  the  consideration  of  the 

jury. 

The  instructions,  therefore,  when  considered  together,  requir- 
ing the  plaintiff  to  satisfy  the  jury,  that  some  of  that  particular 
portion  or  the  whole  lot  of  lo.s  which  the  defendant  had  in  his 
possession  were  cut  upon  land  owned  by  the  plaintiff,  and  that 
no  question  of  confusion  of  property  appeared  to  arise,  were  too 
restrictive.  They  may  have  deprived  the  plaintiff  of  the  r-firht 
to  recover  upon  proof  that  some  of  the  logs  composing  tiic 
whole  lot  had  been  cut  upon  his  land,  and  so  mixed  with 
logs   cut  on   land  owned  b-    v  reble  that  they    could   not   be 

distinguished. 

New  trial  granted. 

Consult— Stephenson  v.  Little,  lo  Mich.  441 ;  Sims  v.  Glazenpr,  14 
Ala.  695,  48  Am.  Dec.  120;  Cross  v.  Marston,  17  Vt.  533,  44  Am.  Dec. 
353;  Robinson  v.  Holt,  39  N.  H.  557,  75  Am-  Dec.  223;  Goodenow  v. 
Snvder,  3  Greene  (la.),  597;  3tearn»  v.  Raymond,  26  Wis.  74. 


lOPERTV. 


MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PUOPERTV.       239 


!  pliiintiff,  no 
Is.  The  jury 
none  of  those 
land.  They 
the  whole  lot 
on  the  plain- 

jwned  by  the 
1  land,  so  that 
ting  confusion 
mixture  might 
B  lot  of  logs, 
t,  might  have 
;ht  have  been 
alue,  that  the 
om  any  one  in 
uch  proportion 
whole  number. 
f  prove  a  con- 
were  cut  upon 
en  sufficient  to 
deration  of  the 

)gether,  requir- 

that  particular 
dant  had  in  his 
lintiff,  and  that 

arise,  were  too 
itiff  of  the  r-nrht 

composing  tiic 
so  mixed    with 

could   not   be 

w  trial  granted. 

IS  V.  Glazener,  14 
33,  44  Am.  Dec. 
23;  Goodenow  v. 
Wis.  74. 


(.C)      INTELLECTUAL   LABOR. 

§  52.   Patents. 

SHAW  V.  COOPER. 

[7  Pet.  292.] 

Supreme  Court  of  the  United  States,  1833. 

Mr.  Justice  M' Lean.— This  writ  of  error  brings  before  this 
court,  for  its  revision,  a  judgment  of  the  circuit  court  of  the 
United  States  for  the  Southern  District  of  New  York. 

An  action  was  brought  in  the  circuit  court  by  Shaw  against 
the  defendant  Cooper,  for  the  violation  of  a  certain  patent 
right  claimed  by  the  plaintiff.  The  defendant  pleaded  the 
general  issue,  and  gave  notice  that  on  the  trial  he  would  prove 
"that  the  pretended  new  and  useful  improvement  in  guns  and 
firearms,  mentioned  and  referred  to  in  the  several  counts  in  the 
declaration;  also  that  the  said  pretended  new  and  useful 
improvement,  or  the  essential  parts  or  portions  thereof,  or  some 
or  one  of  them,  had  been  known  and  used  in  this  country,  viz. : 
in  the  city  of  New  York  and  in  the  city  of  Philadelphia,  and  in 
sundry  other  places  in  the  United  States,  and  in  England,  in 
France,  and  ir  other  foreign  countries,  before  the  plaintiff's 
application  for  a  patent  as  set  forth  in  his  declaration,"  stt:. 

On  the  trial,  the  following  bill  of  exceptions  was  taken:  "To 
maintain  the  issue  joined,  the  plaintiff  gave  in  evidence  certain 
letters  pateni  of  the  United  States,  as  set  forth  in  the  declaration, 
issued  on  the  seventh  day  of  May,  1829;  and  also  that  the 
improvement  for  which  the  letters  were  granted  was  invented 
or  discovered  by  the  plaintiff  in  .813  or  1814;  and  that  the 
defendant  had  s(<U  instruments  which  were  infringements  of  the 
said  letters  patent. 

•'And  the  defendant  then  proved,  by  the  testimony  of  one 
witness,  that  he  had  used  the  said  improvement  in  England,  and 


V  S^Ctl-SHsStV^ 


240       MODES  OF  OnTAlNING  TITLE  TO  PERSONAL  PROPERTY. 

had  purchased  a  gun  of  the  kind  there,  and  had  seen  others  use 
the  said  improvement,  and  had  seen  guns  of  the  kmd  m  the 
Duke  of  York's  rrmory  in  1S19.  And  also  proved  by  the  tes- 
timc.nv  of  five  other  witnesses  that  in  iS2oand  1S21  they  worked 
in  England  at  the  business  of  making  and  repairing  guns,  and 
that  the  said  improvement  was  generally  used  in  England  m 
those  years ;  but  that  they  had  never  seen  guns  of  the  knul  prior 
to  those  years;  and  also  proved  that  in  the  year  1S21  it  was 
used  and  known  in  France ;  and  also  that  the  said  improvement 
was  generally  known  and  used  in  the  United  States  after  the 
nineteenth  dav  of  June,  1S23. 

"And  the  plaintiff,  further  to  maintain  the  issue  on  his  part, 
then  gave  in  evidence  that  he,  not  being  a  worker  in  iron,  in  1813 
or  1S14,  employed  his  brother  in  England,  under  strict  injunc- 
tions of  secrecy,  to  execute  or  fabricate  the  said  improvement 
for  the  purpose  of  making  experiments.     And  that  the  plaintiff 
afterward,  in   1817,  left  England   and  came  to  reside   m  the 
United  States;   and  that  after  his  departure  from  England,  m 
18 1 7  or  iS  18,  his  said  brother  divulged  the  secret  for  a  certain 
reward   to   an  eminent  gun-maker   in  London.     That  on  the 
arrival  of  the  plaintiff  in  this  country,  in  18 17,  he  disclosed  his 
said  improvement  to  a  gun-maker,  whom  he   consulted   as  to 
obtaining  a  patent  for  the  same,  and  whom  he  wished  to  engage 
to  join  and  assist  him.     That  the  plaintiff  made  this  disclosure 
under  injunctions  of  secrecy,  claiming  the  improvement  as  his 
own,   declaring   that  he   should   patent  it.     That  the  plaintiff 
treated  his  invention  as  a  secret  after  his  arrival  in  this  country, 
often  declaring  that  he  should  patent  it;  and  that  this  step  was 
only  delavcd  that  he  might  make  it  more  perfect  before  it  was 
introduced  into  public  use;  and  that  he  did   make   alterations 
which  some  witnesses  considered  improvements  in  his  invention, 
and  others  did   not.     That  in  this  country  the    invention  was 
never  known  nor  used  prior  to  the  said  nineteenth  day  of  June, 
iSa-  •  that  on  that  day  letters  patent  were  issued  to  the  plaintitt, 
being  then  an  alien,  and  that  he  immediately  brought  his  inven- 
tion into  public  use.     That  afterward,  and  aftc.  suits  had  been 
brought  for  a  violation  of  the  said  letters  patent,  the  plaintiff 
was  advised  to  surrender  them  on  account  of  the  specihcatioa 


JITY. 


SHAW   V.  COOPER. 


241 


)thers  use 
k1  in  the 
y  the  tes- 
;y  worked 
guns,  and 
ngland  in 
kind  prior 
2 1  it  was 
jrovement 
after  the 

11  his  part, 
»n,  in  1813 
ict  injunc- 
provement 
le  plaintiff 
ide   in  the 
ngland,  in 
•  a  certain 
hat  on  the 
sclosed  his 
ilted   as  to 
i  to  engage 

disclosure 
nent  as  his 
;he  plaintiff 
lis  country, 
lis  step  was 
fore  it  was 

alterations 
is  invention, 
t'ention  was 
lay  of  June, 
the  plaintiff, 
ht  his  inven- 
its  had  been 
the  plaintiff 
specificatioa 


being  defective ;  and  that  he  did  accordingly,  on  the  seventh 
day  of  May  in  the  year  1S29,  surrender  the  same  into  the 
department  of  the  secretary  of  state,  and  received  the  letters 
first  above  named. 

"And  the  plaintiff  also  g  «ve  in  evidence  that  prior  to  the 
nineteenth  day  of  June,  iSi2,  the  principal   importers  of  guns 
from  England  in  New  York  and  Philadelphia,  at  the  latter  of 
which  cities  the  plaintiff  resided,  had  never  heard  anything  of 
the  said  invention,   or  that  the    same   was   used   or  known   in 
England ;  and  that  no  guns  of  the  kind  were  imported  into  this 
country  until  in  the  years  1S24  or  1S25.     And  that  letters  patent 
were  granted  in  England  on  the  eleventh  day  of  April,   1S07, 
to  one  Alexander  J.  Forsyth,   for  a  method  of  discharging  or 
giving  fire  to  artillery  and  all  other  firearms ;  which  method  he 
describes  in  his  specification  as  consisting  in  the  'use  or  appli- 
cation as  a  priming,  in  any  mode,  of  some  or  one  of   those 
chemical  compounds  which  are  so  easily  inflammable  as  to  be 
capable  of  taking  fire   and   exploding  without  any  actual  fire 
being  applied  thereto,  and  merely  by  a  blow,  or  by  any  sudden 
or  strong  pressure  or  friction  given  or  applied  thereto,  without 
extraordinary  violence ;    that  is  to  say,  .ome  one  of  the  com- 
pounds of  combustible  matter,  such  as  sulphur  or  sulphur  and 
charcoal,  with  an  oxmuriatic  salt;  for  example,  the  salt  formed 
of  dcphlogisticated  marine  acid  and  potash  (or  potasse),  which 
salt  is  otherwise  called  oxmuriate  of  potash ;  or  such  of  the 
fulminating  metallic  compounds  as  may  be  used  with  safety; 
for  example,  fulminating  mercury,  or  of  common  gunpowder 
mixed  in  due  quantity  with   any  of  the  above  mentioned  sub- 
stances, or  with  any  oxmuriatic  salt,  as  aforesaid,  or  of  suitable 
mixtures  of  any  of  the  before  mentioned  compounds;'   and  that 
the  said  letters  patent  continued  in  force  for  the  period  of  four- 
teen years  from  the  time  of  granting  the  same. 

"And  the  defendant,  further  to  r.  'intain  the  issue  on  his  part, 
gave  in  evidence  a  certain  letter  from  the  plaintiff  to  the  defend- 
ant, dated  in  December  in  the  year  1824,  from  which  the  fol- 
lowing is  an  extract:  'Some  time  since  I  stated  that  I  had 
employed  counsel  respecting  regular  prosecutions  for  any  tres- 
pass against  my  rights  to  the  patent ;  I  have  at  length  obtained 
j6 


.   ')tW*rf<i-**=V+'' 


.4Z    MonHS  o.  oBTAmmo  t.t.e  to  pkksoxax.  puopkutv. 

t-        •  -nn  nf  Mr   Sereeant,  o£  this  city,  together  with  others 
the  opinion  of  Mr.  ^^^gea    ,  ^^.^^^  ^  ^.^^^  ^^ 

eminent  in  the  law,  and  tha  :s  ^^^^^^  ^  \i^^  .^davits  of 
insure  success)  to  v  sit  llff^^^fj;Z:nL  known,  and 
Manton  and  others  *« J^^J J^'^j'^,  „„ke  the  lock  at  the 
also  of  the  person  -h-  I     m^^^^  ^^^^^.^^  ^^,^^  ^  ^,^^,, 

prove  that  1  dia  aciuai  y  therefore,  my  intention 

^vise  a  verdict  might  be  ^^^^  "\,  .^^'^J  ""j;.   ;„ 'the  meantime 

obtained.  ,„*«,-,    rame   under   the    Act 

Th,.  .h.  plainUtf.   --•*7j°";s::";j„di„g  the  right 

p«.ed  .he  seventeen  h  d  y  of  Ap.l,   .80  ,^^^_^__  __^.^^  .^^  _^^ 

°'  rrrfr  i  ed  "otr'oath  th..  hU  invention  h.,  no. 
applicant  is  requircu  known  or  used  m 

,r^he  best  01  hi.  knowledge  or  bel        ^^'^^'^.st  probably 

this  or  .ny  '"^  Jl^ig  J^t  itvention  for  which  he 
did  not  know,  m  the  year  lo^^,  .^^  ^ 

was  taking  out  a  patent  had   before  t^^^^'^^^'.^^^^^^^^  „„  that 
foreign  country ;  but  ^^J^^Tc^J^Z,  part  of  the 

^^^^'^r::':::^^^^^^^^  every  patent  obtamed 
section,  whicn       ,.c»^y  d  ^^^  ^^.^^  .^  ^^^^^^  ^j^^^.. 

pursuant  to  th'^t  A<:t  fo>  «ny  ^^  ^^^^  ^^^^j.^^. 

ward  appear  had  ^^en  known  or  use    p  ^^^  ^^^^j^_ 

tion  for  a  patent,  should  be  ""^^^y  ^^J^;  '  .^^^  states,  and 
i„,  in  the  Act  -  -n^  -;^-  :„  t,^^^^  ,„  England  or 
that  if  the   invention   was   prcvio      y  ^^^^ 

France  it  was  -«^7J;°^:;:ircSusion  that  the  plain- 
That  the  evidence  ^-°"^J^^^;  f  ^^^  ^^c  murt  were  of  opinion 
tiff  was  the  inventor  in  this  case,  but  mc 


tl 
u 

P 
V 

a 
b 
a 

h 
i 

ii 
c 
c 


EUTY, 


SHAW   V.  COOPER. 


243 


,vith  others 
a  view  to 
ffidavits  of 
;nown,  and 
lock  at  the 
at  I  should 
:tice,  other- 
ny  intention 
le  meantime 
ided  for  the 

at  the  patent 
s  appears  by 
oatent  of  the 
r  intended  to 
;  it  must  be 
nd  the  rights 
ite  of  things 
;nt   was   first 

der  the    Act 
ding  the  right 
of  which  the 
ition  has  not, 
wn  or  used  in 
nost  probably 
1  for  which  he 
en  in  use  in  a 
orance  on  that 
ng  part  of  the 
atent  obtained 
t  should  after- 
}  such  applica- 
there  was  noth- 
id  States;    and 
in  England   or 
nder  that  Act- 
I  that  the  plain- 
vere  of  opinion 


that  he  had  slept  too  long  on  his  rights,  and  not  followed  them 
up  as  the  law  requires  to  entitle  him  to  any  benefit  from  his 
patent.  That  the  use  of  the  invention,  by  a  person  who  had 
pirated  it,  or  by  others  who  knew  of  the  piracy,  would  not 
affect  the  inventor's  rights,  but  that  the  law  was  made  for  the 
benefit  of  the  public  as  well  as  of  the  inventor;  and  if,  as 
appears  from  the  evidence  in  this  case,  the  public  had  fairly 
becou.e  possessed  of  the  invention  before  the  plaintiff  applied 
for  his  patent,  it  was  sufficient,  in  the  opinion  of  the  court,  to 
invalidate  the  patent;  even  though  the  invention  may  have 
originally  got  into  public  use  through  the  fraud  or  misconduct 
of  hrs  brother,  to  whom  he  intrusted  the  knowledge  of  it. 

Under  this  charge  the  jury  found  a  verdict  for  the  defendant, 
on  which  a  judgment  was  entered. 

There  is  a  general  assignment  of  errors,  which  brings  to  the 
consideration  of  the  court  the  principles  of  law  which  arise  out 
of  the  facts  of  the  case,  as  stated  in  the  bill  of  exceptions. 

It  may  be  proper  in  the  first  place  to  inquire  whether  the 
letters  patent  which  were  obtained  in  1829,  on  a  surrender  of 
the  first  patent,  have  relation  to  the  emanation  of  the  patent  in 
1822,  or  shall  be  considered  as  having  been  issued  on  an 
original  application. 

On  the  part  of  the  plaintiff  it  is  contended  that  "the  second 
patent  is  original  and  independent,  and  not  a  continuation  of 
the  first  patent."  That  in  adopting  the  policy  of  giving,  for  a 
term  of  years,  exclusive  rights  to  inventors  in  this  country,  we 
adopted  at  the  same  time  the  rules  of  the  common  law  as  applied 
to  patents  in  England :  and  that  by  the  common  law  a  patent 
when  defective  may  be  surrendered  to  the  granting  power, 
which  vacates  the  right  under  it,  and  the  king  may  grant  the 
right  de  novo  either  to  the  same  or  to  any  other  person. 

This  being  the  effect  of  the  surrender  of  a  patent  in  England, 
it  is  insisted  that  the  same  consequence  should  follow  a  sur- 
render in  this  country.  On  this  subject  it  is  said,  that  the 
decisions  of  the  English  courts  are  uniform,  and  that  not  even 
a  dictum  can  be  found  that  a  second  patent  is  a  continuation  of 
the  first. 

The  counsel  seems  to  consider  this  point  of  great  importance, 
as  the  plaintiff  was  an  alien  when  the  first  patent  was  obtained, 


2  44       MODES  OF  OnTAINlNG  TITLE  TO  PERSONAL  PROPEnTY. 

but  had  become  naturalized  before  the  date  of  the  second;  and, 
consequently,  that  his  rights  under  the  second  patent  can  not 
be  governed  by  the  law  applicable  to  aliens.  As  the  inquiry 
on  this  head  is,  whether  the  second  patent  has  relation  to  the 
first,  it  is  not  necessary  to  look  into  the  laws  to  ascertain  the 
respective  rights  of  aliens  and  citizens  on  this  subject.  In 
regard  to  the  rights  of  the  patentee  to  surrender  a  defective 
patent,  a.;d  take  out  a  new  one,  there  can  be  no  difference 
between  a  citizen  and  an  alien. 

That  the  holder  of  a  defective  patent  may  surrender  it  to  the 
department  of  state,  and  obtain  a  new  one,  which  shall  have 
relation  to  the  emanation  of  the  first,  was  decided  by  this  court 
at  the  last  term  in  the  case  of  Grant  and  others  v.  Raymond,  6 
Peters,  220.  The  chief  justice,  in  giving  the  opinion  of  the 
court,  says:  "But  the  new  patent,  and  the  proceedings  on 
which  it  issues,  have  relation  to  the  original  transaction.  The 
time  of  the  privilege  still  runs  from  the  date  of  the  original 
patent.  The  application  may  be  considered  as  appended  to 
the  original  application;  and  if  the  new  patent  is  valid,  the  law 
must  be  considered  as  satisfied  if  the  machine  was  not  known 
or  used  before  that  application." 

As  this  decision  must  b^  considered  as  settling  the  construc- 
tion of  the  patent  laws  on  this  point,  it  is  conclusive  in  the 
present  case ;  and  it  is,  therefore,  unnecessary  to  examine  the 
argument  of  the  plr.intiff's  counsel,  which  was  designed  to  lead 
to  a  different  conclusion. 

The  second  patent  being  a  continuation  of  the  first  one,  the 
rights  of  the  plaintiff  must  be  ascertained  by  the  law  under 
which  the  original  application  was  made. 

This  law  was  passed  on  the  seventeenth  of  April,  iSoo,  and 
provides  "that  all  and  singular  the  rights  and  privileges  given  to 
citizens  of  the  United  States  respecting  patents  for  new  inven- 
tions, etc.,  shall  be  extended  to  aliens,  who,  at  the  time  of  peti- 
tioning, shall  have  resided  for  two  years  within  the  United 
States,  etc.  Provided,  that  every  person  petitioning  for  a 
patent  for  any  invention,  art,  or  discovery,  pursuant  to  this 
Act,  shall  make  oath  or  affirmation  before  some  person  duly 
authorized  to  administer  oaths,  before  such  patent  shall  be 
granted,  that  such  invention,  art,  or  discovery  hath  not  to  the 
best  of  his  or  her  knowledge  or  belief  been  known  or  used. 


OPERTY. 


SHAW    V.  COOPER. 


'45 


second;  and, 
itent  can  not 
5  the  inquiry 
elation  to  the 
ascertain  the 
subject.  In 
r  a  defective 
no  difference 

;nder  it  to  the 
:h  shall  have 
1  by  this  court 
,  Raymond,  6 
pinion  of  the 
roceedings  on 
saction.  The 
if  the  original 
3  appended  to 
valid,  the  law 
as  not  known 

r  the  construc- 
clusive  in  the 
o  examine  the 
;signed  to  lead 

e  first  one,  the 
the   law  under 

pril,  iSoo,  and 
vileges  given  to 
:or  new  inven- 
le  time  of  peti- 
lin  the  Uniied 
titioning  for  a 
ursuant  to  this 
ne  person  duly 
patent  shall  be 
lath  not  to  the 
known  or  used, 


either  in  this  or  any  foreign,  country ;  and  that  every  patent 
which  shall  be  obtained  r..rsuant  to  this  Act  for  any  invention, 
art,  or  discovciv  wnich  it  shall  afterward  appear  had  been 
known  or  used  previous  to  such   application  for  a  patent,  shall 

be  utterly  void." 

By  the  Act  of  the  twenty-first  of  February,  1793,  which  limits 
patent  rights  to  citizens,  it  is  provided  "that  every  person  or 
persons,  in  his  or  their  application  for  a  patent,  shall  state  that 
the  machine,  etc.,  was  noi  knoivn  or  used  before  such  applica- 
tion." 

The  sixth  section  of  this  Act  provides  that  a  defendant,  when 
prosecuted  for  a  violation  of  a  patent  right,  may  give  in  evi- 
dence,  under  a  notice,  among  other  matters,  "that  the  thing 
secured  by  patent  was  not  originally  discovered  by  the  patentee, 
but  had  been  in  use,  or  had  been  described  in  some  public 
work  anterior  to  the  supposed  discovery  of  the  patentee,  or 
that  he  had  surreptitiously  obtained  a  patent  for  the  discovery 
of  another  person :  in  either  of  which  cases  judgment  shall  be 
rendered  for  the  defendant  with  costs,  and  the  patent  shall  be 
declared  void." 

It  would  seem,  from  the  above  provisions,  that  citizens  and 
aliens,  as  to  patent  rights,  are  placed  substantially  upon  the 
same  ground.  In  either  case,  if  the  invention  was  known  or 
used  by  the  public  before  it  was  patented,  the  patent  is  void. 
In  both  cases  the  right  must  be  tested  by  the  same  rule. 

From  the  facts  in  the  case,  it  appears  that  the  plaintiff,  while 
residing  in  England,  in  1S13  or  1814,  invented  the  instrument 
secured  by  his  patent.  That  before  he  came  to  the  United 
States,  he  made  known  his  invention  to  his  brother,  to  Mr. 
Manlon,  a  gun-maker  in  London,  and  to  others.  That  shortly 
after  he  came  to  the  United  States,  in  1817,  he  disclosed  his 
invention  to  a  gun-maker  in  Philadelphia,  and  that  in  1817  or 
1 8 18,  the  plaintiff's  brother  sold  the  invention  to  a  gun-maker 
in  London.  That  in  1819  th:  invention  was  sold  and  used  in 
England  ;  and  that  in  the  two  following  years  it  was  in  public 
use  there,  and  in  the  latter  year  also  in  France.  That  on  the 
nineteenth  of  June,  1S22,  his  first  patent  was  obtained. 

It  also  appears  that  in  April,  1807,  a  patent  was  granted  in 
England  to  one  Forsyth  for  fourteen  years,  for  an  invention  on 
the  same  subject.     This  fact  was  shown  by  the  plaintiff,  it  is 


2^6      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROI'EIITY. 

presumed,  as  a  reason  why  he  did  not  take  out  a  patent   in 

En<{land. 

The  question  arises  from  these  facts,  and  others  which  be'ong 
to  the  case,  whether  there  was  such  a  use  in  the  public,  of  this 
invention,  at  the  date  of  the  plaintiff's  first  patent,  as  to  render 

it  void. 

By  the  plaintiff's  counsel  it  is  insisted  that  if  an  invention  ha» 
been  pirated,  or  fraudulently  divulged,  the  inventor  can  not 
thereby  lose  his  right  to  his  own  invention  and  property ;  and 
it  makes  no  difference  that  the  public  have  acquired  the  use  of 
the  invention  without  any  participation  in  the  fraud,  unless  the 
inventor  has  acquiesced  in  such  use. 

The  right  of  the  plaintiff  to  his  invention  is  compared  to  his 
right  to  other  property,  which  can  not  be  divested  by  fraud  or 
violence;  and  the  case  of  Miller  v.  Taylor,  4  Burr.  2303,  where 
seven  judges  against  four  held,  that  at  common  law,  an  author, 
by  publishing  a  literary  composition,  does  not  abandon  his  right, 
is  referred  to  as  illustrative  of  the  principle. 

Several  decisions  by  the  circuit  courts  of  the  United  States 
are  cited  to  sustain  the  right  of  the  plaintiff.  In  the  case  of 
Whittemore  v.  Cutter,  i  Gall.  4S2,  the  court  say:  "It  will  not 
protect  the  plaintiff's  patent,  that  he  was  the  inventor  of  the 
improvements,  if  he  suffered  them  to  be  used  freely  and  fully 
by  the  public  at  large  for  so  many  years,  combined  with  all  the 
usual  machinery ;  for  in  such  case  he  must  be  deemed  to  have 
made  a  gift  of  them  to  the  public,  as  much  as  a  person  who 
voluntarily  opens  his  land  as  a  highway,  and  suffers  it  to  remain 
for  a  length  of  time  devoted  to  public  use." 

In  the  case  of  Goodyear  v.  Matthews,  i  Paine's  Rep.  301, 
the  court,  in  substance,  say,  "that  if  the  plaintiff  be  the  inventor, 
it  is  immaterial  that  the  invention  has  been  known  and  used  for 
years  before  the  application."     And  in  the  case   of  Morris  v. 
Huntington,  i  Paine,  354,  the  court  say,  that  "no  man  is  to  be 
permitted  to  lie  by  for  years,  and  then  take  out  a  patent.     If  he 
has  been  practicing  his  invention  with  a  view  of  improving  it, 
and  thereby  rendering  it  a  greater  benefit  to  the  public,  before 
taking  out  a  patent,  that  ought  not  to  prejudice   him.     But  it 
should    always   be    a   question    submitted   to   the   jury,    what 
was  the  intent  of  the  delay  of   the   patent,  and   whether   the 
allowing  the  invention   to  be   used  without   a  patent   should 


IFEIITY. 

I  patent   in 

hich  belong 
blic,  of  this 
as  to  render 

iventlon  ha* 
tor  can '  not 
operty ;  and 
d  the  use  of 
1,  unless  the 

ipared  to  his 
by  fraud  or 
2303,  where 
f,  an  author, 
Ion  his  right, 

nited  States 

the  case  of 

"It  will  not 

entor  of  the 

;ly  and  fully 

I  with  all  the 

med  to  have 

person  who 

s  it  to  remain 

;'s  Rep.  301, 
the  inventor, 
and  used  for 
of  Morris  v. 

man  is  to  be 
)atent.  If  he 
improving  it, 
aublic,  before 
him.  But  it 
e   jury,    what 

whether   the 
patent   should 


SHAW    V.  COOl'EH. 


347 


not  be  considered    an  abandonment   or   present   of   it   to   the 

public." 

This  was  a  case  where  a  second  patent  had  been  obtamcd, 
the  first  being  defective,  and  this,  it  would  seem,  was  deemed 
sufficient  to  protect  the  right  of  the  plaintiff,  though  the  public 
had  been  in  possession  of  the  invention  for  six  years  before  the 
emanation  of  the  second  patent.  Of  the  same  import  are 
the   cases   cited   from   4    Mas.    icS,    and   4   Wash.   43S    and 

703. 

The  question  what  use  in  the  public  before   the   application 
is  made  for  a  patent  shall  made  void  the  right  of  the  patentee, 
was  brought  before  this  court  by  the  case  of  Pennock  and  Sel- 
lers V.  Dialogue,  reported  in  3  Pet.  i.     In   this  case  the   court 
say  that  "it  has  not  been,  and   indeed  can   not  be  denied,  that 
an    inventor   may    abandon    his    invention    and   surrender   or 
dedicate  it  to   the    public.     This    inchoate   right,    thus    gone, 
can  not  afterward  be  resumed  at  his  pleasure ;  for  when  gifts 
are  once  made  to  the  public  in  this  way,  they  become  absolute." 
And  again,  "if  an  invention  is  used  by    the   public,  with   the 
consent  of  the   inventor,  at  the  time  of  his   application  for  a 
patent,  how  can   the   court  say,  that  his  case   is  nevertheless 
such  as  the  act  was  intended,  to  protect?     If  such  a  public  use 
is  not  a  use  within   the  meaning  of  the  statute,  how  can  the 
court  extract  the  case  from  its  operation,  and  support  a  patent, 
when  the  suggestions  of  the  patentee  were  not  true ;  and   the 
conditions,  on  which  alone  the   grant  was  authorized,  do  not 
exist."   "The  true  construction  of  the  patent  law  is,"  the  court 
say,  "that  the  first  inventor  can  not  acquire  a  good   title  to  a 
patent,  if   he  suffers  the  thing  invented  to  go   into  public  use, 
or  to  be  publicly  sold  for  use  before  he  makes  application  for  a 
patent."     In  this  case  it  appeared  that  the  thing  invented  had 
been  in  use  by  the  public,  with  the  consent  of  the  inventors,  and 
through  which  they  derived  a  profit,  for  seven  years  before  the 
emanation  of  a  patent.     And  this  use  was  held  by  the  court  to 
be  an  abandonment  of  the  right  by  the  patentees. 

The  policy  of  granting  exclusive  privileges  in  certain  cases 
was  deemed  of  so  much  importance  in  a  national  point  of  view, 
that  power  was  given  to  congress  in  the  federal  constitution, 
"to  promote  the  progress  of  science  and  useful  arts,  by  securing 
for  limited  times,  to  authors  and  inventors,  the  exclusive  right 
to  their  respective  writings  and  discoveries." 


24S       MODES  OF  OnTAINlNG  TITLE  TO  PERSONAL  PUOPERTY. 

This  power  was  cxcrcisid  by  congress,  in   the  passage  of  the 
acts  which  have  been  rcfcnccl  to.   Aiul  from  an  examination  of 
their  various  provisions,  it  clearly  appears,  that  it  was  the  inten- 
tion of  the  legislature,  by   a   compliance  with    the  requisites  of 
the  law,  to  vest  the  exclusive  right   in  the   inventor   only ;  and 
that   on    condition,  that   his  invention  was   neither   known  nor 
used  by  the  public,  before  his  application  for  a  patent.    If  such 
use  or  knowledge  shall  be  proved  to  have   existed,  prior  to  the 
application  for  the  patent,  the  act  of    1793   declares  the   patent 
void ;   and  as  has  been  already  stated,  the   right  of  an   alien  is 
vacated   in   the   same    manner,  by    proving   a   foreign    use    or 
knowledge  of  his  invention.     That  knowledge  or  use  which 
would  be  fatal  to  the  patent  right  of  a  citizen,  would  be  equally 
so  to  the  right  of  an  alien. 

The  knowledge  or  use  spoken  of  in  the  act  of  1793  could 
have  referred  to  the  public  only,  for  the  provision  would  be 
nugatory  if  it  were  applied  to  the  inventor  himself.  He  must, 
necessarily,  have  a  perfect  knowledge  of  the  thing  invented 
and  its  use,  before  he  can  describe  it,  as  by  law  he  is  required 
to  do,  preparatory  to  the  emanation  of  a  patent.  But  there 
may  be  cases  in  which  a  knowledge  of  the  invention  may 
be  surreptitiously  obtained  and  communicated  to  the  public, 
that  do  not  affect  the  right  of  the  inventor.  Under  such 
circumstances  no  presumption  can  arise  in  favor  of  an  abandon- 
ment of  the  right  to  the  public,  by  the  inventor;  though  an 
acquiescence  on  his  part  will  lay  the  foundation  tor  such  a  pre- 

sumption.  ,    „      a: 

In  England  it  has  been  deci.led  that  if  an  niventor  shall  suffer 
the  thing  invented  to  be  sold,  and  go  into  public  use  for  four 
months;  and  in  a  later  case  for  any  period  of  time,  before  the 
date  of  his  patent,  it  is  utterly  void.  In  that  country  the  right 
emanates  from  the  royal  prerogative;  in  this,  it  is  founded 
exclusively  on  statutory  provisions.  But  the  policy  in  both 
governments  is  the  same,  in  granting  the  right,  and  in  fixing  its 

limits.  . 

Vigilance  is  necessary  to  entitle  an  individual  to  the  privileges 
secured  under  the  patent  law.  It  is  not  enough  that  he  should 
show  his  right  by  invention,  but  he  must  secure  it  in  the  mode 
required  by  law.  And  if  the  invention,  through  fraudulent 
means,  shall  be  made  known  to  the  public,  he  should  assert 


PERTV. 

sa^c  of  the 
nination  of 
IS  the  inten- 
eciuisites  of 

only ;  ami 

known  nor 

lit.    If  such 

jiior  to  the 

i  the   patent 

an   alien  is 
:ign    use    or 

use  which 
1  be  equally 

1793  could 
n  would  be 
He  must, 
ng  invented 
e  is  required 
But  there 
'ention    may 

the   public, 
Under   such 

an  abandon- 
;  though  an 
r  such  a  pre- 

(r  shall  suffer 
use  for  four 
le,  before  the 
ntry  the  right 
t  is  founded 
olicy  in  both 
d  in  fixing  its 

the  privileges 
hat  he  should 
t  in  the  mode 
^h  fraudulent 
should  assert 


SHAW   V.  COOPER. 


949 


his  right  immediately,  and   take  the   necessary  steps  to  legal- 

'  The  patent  law  was  designed  for  the  public  benefit,  as  well 
-,s  for  the  benelit  of  inventors.  For  a  valuable  invention,  the 
public,  on  the  inventor's  complying  with  certain  conditions, 
give  him,  for  a  limited  period,  the  profits  arising  from  the  sale 
of  the  thing  invented.  This  holds  out  an  inducement  for  the 
exercise  of  genius  and  skill  in  making  discoveries  which  maybe 
useful  to  society,  and  profitable  to  the  discoverer.  But  it  was 
not  the  intention  of  this  law  to  take  from  the  public  that  of 
which  thcv  were  fairly  in  possession. 

In  the  progress  of  society,  the  range  of  discoveries  in  the 
mechanic  arts,  in  science,  and  in  all  things  which  promote  the 
public  convenience,  as  a  matter  of  course,  will  be  enlarged. 
This  results  from  the  aggregation  of  mind,  and  the  diversity  of 
talents  and  pursuits,  which  exist  in  every  intelligent  com- 
munity. And  it  would  be  extremely  impolitic  to  retard  or 
embarrass  this  advance,  by  withdrawing  from  the  public 
any  useful  invention  or  art,  and  making  it  a  subject  of  private 
monopoly.  Against  this  consequence,  the  legislature  have 
carefully    guarded    in    the   laws    they   have    passed    on    the 

subject. 

It  is  undoubtedly  just  that  every  discoverer  should  realize  the 
benefits  resulting  from  his  discovery  for  the  period  contemplated 
by  law  But  these  can  only  be  secured  by  a  substantial  com- 
pliance with  every  legal  requisite.  His  exclusive  right  does  not 
rest  Mone  upon  his  discovery;  but  also  upon  the  legal  sanctions 
which  have  been  given  to  it,  and  the  forms  of  law  with  which 
it  has  been  clothed. 

No  matter  by  what  means  an  invention  may  be  communi- 
cated to  the  public,  before  a  patent  is  obtained,  any  acquies- 
cence in  the  public  use,  by  the  inventor,  will  be  an  abandon- 
ment of  his  right.  If  the  right  were  asserted  by  him  who 
fraudulently  obtained  it,  perhaps  no  lapse  of  time  could  give  it 
validity.     But  the  public  stand  in  an  entirely  different  relation 

to  the  inventor. 

The  invention  passes  into  the  possession  of  innocent  persons, 
who  have  no  knowledge  of  the  fraud,  and  at  a  considerable 
expense,  perhaps,  they  appropriate  it  to  their  own  use.  The 
inventor  or  his  agent  has  full  knowledge  of  these  facts,  but  fails 


350      MODES  OF  OBTAIN'ING  TITLE  TO  PERSONAL  PUOPEUTY. 

to  assert  his  right;  shall  he  afterward  be  permitted  to  assert  it 
with  effect?  Is  not  this  such  evidence  of  acquiescence  m  the 
public  use,  on  his  part,  as  justly  forfeits  his  right  ? 

If  an  individual  witness  a  sale  and  transfer  of  real  estate, 
under  certain  circumstances,  in  which  he  has  an  equitable  l.en 
or   interest,   and  does  not  make  known  this  interest,  he   shall 
not  afterward  be   permitted  to   assert  it.     On  this  principle  it 
is   that  a  discoverer  abandons  his  right,  if,  before  the  obtain, 
ment  of  his  patent,  his  discovery  goes  into  public  use.     His 
right  would  be  secured  by  giving   public  notice  that  he  was  the 
inventor  of  the    thing  used,  and   that  he   should    apply  for  a 
natent.     Does   this    impose   anything    more    than    reasonable 
diligence  on  the  inventor?     And  would  anything  short  of  this 
be  just  to  the  public? 

The  acquiescence  of  an  inventor  in  the  public  use  of  his 
invention  can  in  no  case  be  presumed  where  he  has  no  knowl- 
edge of  such  use.  But  this  knowledge  may  be  presumed  from 
the  circumstances  of  the  case.  This  will,  in  general  be  a 
fact  for  the  jury.  And  if  the  inventor  do  not,  immediately 
after  this  notice,  assert  his  right,  it  is  such  evidence  of  acquies- 
cence in  the  public  use  as  forever  afterward  to  prevent  him 
from  asserting  it.  After  his  right  shall  be  perfected  by  a 
patent,  no  presumption  arises  against  it  from  a  subsequent  use 

by  the  public.  ,     .  ^    r 

When  an    inventor  applies  to  the  department  of   state  for  a 
patent,  he  should  f  tate  the  facts  truly ;  and  indeed  he  is  required 
to   do  so,   under  the  solemn   obligations  of   an   oath.     If  his 
invention  has  been  carried  into  public  use  by  fraud,  but  for  a 
series  of  months  or  years  he    has   taken    no   steps    to    assert 
his  right,  would  not  this  afford  such   evidence  of  acquiescence 
as  to  defeat  his    application,  as  effectually  as  if  he   failed  to 
state  that  he  was  the  original  inventor?    And  the  same  evidence 
which  should    defeat  his  application  for  a  patent,    would,  at 
any  subsequent  period,  be  fatal  to  his  right.     The  evidence  he 
exhibits  to  the  department   of  state  is  not  only  ex  farte,  but 
interested  and  the  questions  of  fact  are  left  open,  to  be  contro- 
verted by  any  one  who  shall  think  proper  to  contest  the  right 

under  the  patent. 

A  strict  construction  of  the  act,  as  it  regards  the  public  use 
of  an  invention   before  it  is  patented,  is  not  only  required  by 


PEUTY. 

[o   assert  it 
;nce  in   the 

real  estate, 
uitable  lien 
t,  he  shall 
principle  it 
the  obtain- 
c  use.  His 
;  he  was  the 
apply  for  a 
reasonable 
ihort  of  this 

:  use  of  his 
9  no  knowl- 
isumed  from 
jneral,  be  a 
immediately 
i  of  acquies- 
prevent  him 
rfected  by  a 
bsequent  use 

f  state  for  a 
le  is  required 
oath.  If  his 
id,  but  for  a 
ps  to  assert 
acquiescence 

he  failed  to 
ame  evidence 
it,  would,  at 
B  evidence  he 
!X  parte,  but 

to  be  contro- 
iitest  the  right 

:he  public  use 
ly  required  by 


8IIAW   V.  COOPEIl.  -d' 

its  letter  and  spirit,  but  also  by  sound  policy  A  term  of 
fourteen  years  was  deemed  sutlicicnt  for  the  enjoyment  of  an 
exclusive  ri^ht  of  an  invention  by  tlie  inventor;  but  if  he  may 
delay  an  application  for  his  patent,  at  pleasure,  althouf,'h  his 
invention  be  carried  into  public  use,  he  may  extend  the  period 
beyond  what  the  law  intended  to  give  him.  A  pretense  of 
fraud  would  afford  no  adequate  security  to  the  public  in  this 
respect,  as  artifice  might  be  used  to  cover  the  transaction.  The 
doctrine  of  presumed  acquiescence,  where  the  public  use  is 
known,  or  might  be  known  to  the  inventor,  is  the  only  safe 
rule  which  can  be  adopted  on  this  subject. 

In  the  case  under  consideration  it  appears  the  plaintiff  came 
to  this  country,  from  England,  in  the  year  1S17,  and,  being  an 
alien,  he  could  not  apply  for  a  patent  until  he  had  remained 
in  the  country  two  years.  There  was  no  legal  obstruction  to 
his  obtaining  a  patent  in  the  year  1819;  but  it  seems  that  he 
failed  to  apply  for  one  until  three  years  after  he  might  have 
done  so.  Had  he  used  proper  diligence  in  this  respect  his  right 
mi<»ht  have  been  secured,  as  his  invention  was  not  sold  in 
England  until  the  year  18 19.  But,  in  the  two  following  years, 
it  is  proved  to  have  been  in  public  use  there,  and,  in  the  latter 
year,  also  in  France.  Under  such  circumstances,  can  the 
plaintiff's  right  be  sustained  ? 

His  counsel  assigns  as  a  reason  for  not  making  an  earlier 
application,  that  he  was  endeavoring  to  make  his  invention 
more  perfect ;  but  it  seems  by  this  delay,  he  was  not  enabled 
essentially  to  vary  or  improve  it.  The  plan  is  substantially 
the  same  as  was  carried  into  public  use  through  the  brother  of 
the  plaintiff,  in  England.  Such  an  excuse,  therefore,  can  not 
avail  the  plaintiff.  For  three  years  before  the  emanation  of 
his  patent,  his  invention  was  in  public  use,  and  he  appears  to 
have  taken  no  step  to  assert  his  right.  Indeed,  he  sets  up,  as  a 
part  of  his  case,  the  patent  to  Forsythe,  as  a  reason  why  he  did 
not  apply  for  a  patent  in  England. 

The  Forsythe  patent  was  dead  six  years  before.  Some  of 
the  decisions  of  the  circuit  courts,  which  are  referred  to,  were 
overruled  in  the  case  of  Pennock  and  Sellers  v.  Dialogue. 
They  made  the  question  of  abandonment  to  turn  upon  the  in- 
tention of  the  inventor.  But  such  is  not  considered  to  be  the 
true  ground.     Whatever  may  be  the  intention  of  the  inventor, 


253       MODES  OF  OUTAINING  TITLE  TO  PERSONAL   PROPERTY. 

if  he  suffer^  his  invention  to  go  into  public  use,  through  any 
means  whatsoever,  without  an  immediate  assertion  of  his  right, 
hf^  is  not  entitled  to  a  patent,  nc  r  will  a  patent,  obtained  u-ider 
such  circumstances,  protect  nis  right. 

The  judgment  of  the  circuit  court  must  be    affirmed    with 
costs. 

Consult— Hammond  v.  Stockton   Works,  70  Fed,  Rev-  716;    Moore 
V.  O'Reilly,  15  How.  169. 


§  53.    Copyrights— The  right  a  statutory  one. 
WHEATON  V.  PETERS. 

[8  Pet.  59I-] 
Supreme  Court  of  United  States,  1834. 

The  complainants  claimed  to  have  a  copyright  in  and  to  the 
twelve  volumes  of  Wheaton's  Reports,  and  they  alleged  that 
defendant  had  violated  their  rights  by  printing  and  publishing 
the  same  in  a  series  which  defendants  had  prepared,  entitled 
"Condensed  Reports  of  Cases  in  the  Supreme  Court  of  the 
U.  S.,"  and  prayed  among  other  things  that  defendants  be 
restrained  from  further  publication  thereof. 

Mr.  Justice  McLean. — Some  of  thp  questions  which  arise 
in  this  case  are  as  novel,  in  this  country,  as  they  are  interesting. 
But  one  case  involving  similar  principles,  except  a  decision  by 
a  state  court,  has  occurred,  and  that  was  decided  by  the  circuit 
court  of  the  United  States  for  the  district  of  Pennsylvania, 
from  whose  decree  no  appeal  was  taken. 

The  right  of  the  complainants  must  be  first  examimed.  If 
this  right  shall  be  sustained  as  set  forth  in  the  bill,  and  the 
defendants  shall  be  proved  to  have  violated  it,  the  court  will 
be  bound  to  give  the  appropriate  redress. 

The  complainants  assert  their  right  on  t  vo  grounds. 

First,  under  the  common  law. 

Secondly,  under  the  acts  of  congress. 

And  they  insist,  in  the  first  plac,  that  an  author  was  entitled, 
at  common  law,  to  a  perpetual  property  in  the  copy  of  his 


PROPERTY. 

e,  through  any 
)n  of  his  right, 
jbtaincd  irider 

affirmed    with 
lev-  716;    Moore 


ae> 


VVHEATON    V.  PETERS. 


353 


^34- 

ht  in  and  to  the 
ey  alleged  that 
and  publishing 
spared,  entitled 
e  Court  of  the 
:  defendants  be 

3ns  which  arise 
are  interesting, 
t  a  decision  by 
:d  by  the  circuit 
:    Pennsylvania, 

examimed.  If 
le  bill,  and  the 
,  the  court  will 


rou 


nds. 


liorwa'i  entitled, 
the  copy  of  his 


works,  and  in  the  profits  of  their  publication ;  and  to  recover 
damages  for  its  injury,  by  an  action  on  the  case,  and  to  the 
protection  of  a  court  of  equity. 

In  support  of  this  proposition,  the  counsel  for  the  complain- 
ants have  indulged  in  a  wide  range  of  argument,  and  have 
shown  great  industry  and  ability.  The  limited  time  allowed 
for  the  preparation  of  this  opinion  will  not  admit  of  an  equally 
extended  consideration  of  the  subject  by  the  court. 

Perhaps  no  topic  in  England  has  excited  more  discussion, 
among  literary  and  talented  men,  than  that  of  the  literary  prop- 
erty of  authors.     So  engrossing  was  the  subject,  for  a  long 
time,  as  to  leave  few   neutrals  among  those  who  were  distin- 
guished for  their  learning  and  ability.     At  length  the  question, 
whether  the  copy  of  a  book  or  literary  composition  belongs  to 
the  author  at  common  law  was  brought  before   the    court  of 
King's  Bench,  in  the  great  case  of  Miller  v.  Taylor,  reported 
in  4  Burr    230.V     This  was  a  case  of  great  expectation;   and 
the  four  judg(      'n  giving  their  opinions,   seriatim,   exhausted 
the    argument  oa  both   sides.     Two  of  the  judges  and  Lord 
Mansfic'd  held  that  by  the  common  law  an  author  had  a  literary 
property  in  his  works ;   and  they  sustained  their  opinion  with 
very  great  ability.     Mr.  Justice  Yeates,  in  an  opinion  of  great 
length,  and  with  an  ability,  if  equaled,  certainly  not  surpassed, 
maintained  the  opposite  ground. 

Previous  to  this  case,  injunctions  had  issued  out  of  chancery 
to  prevent  the  publication  of  certain  works  at  the  instance  of 
those  who  claimed  a  property  in  the  copyright,  but  no  decision 
had  been  given.  And  a  case  had  been  commenced  at  law 
between  Tonson  and  Collins,  on  the  same  ground,  and  was 
argued  with  great  ability  more  than  once,  and  the  court  of 
King's  Bench  were  about  to  take  the  opinion  of  all  the  judges, 
when  they  discovered  that  the  suit  had  been  brought  by  col- 
lusion, to'  try  the  question,  and  it  was  dismissed. 

This  question  was  brought  before  the  house  of  lords  in  the 
case  of  Donaldson  v.  Beckett  and  others,  reported  in  4  Burr. 

240S. 

Lord  Mansfield,  being  a  peer,  through  feelings  of  delicacy, 
declined  giving  any  opinion.  The  eleven  judges  gave  their 
opinions  on  the  following  points:  First.  Whether  at  common 
law  an  author  of  any  book  or  literary  composition  had  the  m\e 


immt^ 


.54      MODES  OF  OBtAINING  TITLE  TO  PEKSONAL  PROPEHTV. 

right  cf  first  printing,  and  publishing  the  same  for  sale;  and 
Xl  bring  an  action  against  any  person  who  printed,  pub- 
S^d  nd  sold  the  sanfe  without  his  consent.  On  th.s  quest.on 
thtVere  eight  judges  in  the  affirmative  and  three  m  the  nega- 

''Icconci.  If  the  author  had  such  right  originally,  did  the  law 
take  t  away  upon  his  printing  and  publishing  s-'^h  book  o. 
te  4  compo  Hion?  and  might  any  person,  afterward,  repunt 
and  sell  for  his  own  benefit,  such  book  or  literary  compos.- 
T  t.\L  the  will  of  the  author?  This  quest.on  was 
rUSi:  the  affirmative  by  four  pdges  and  in  the  negative 

"""^M^.  If  such  action  would  have  lain  at  common  law   is  h 
taken  away  by  the  statute  of  S  Anne;  and  is  an  author   by  t 
mXte   precluded  from  every  remedy,  except  on  the  foun- 

i-pmedv  must  be  under  the  statute. 

Xtr  Whether  the  author  ot  any  literary  »0">P-"'°". 
.„fh  tip.»,  had  the  so,e  right  of  printing  -  P""';^»« 
L  same  in  perpetuity  by  the  common  law.  Wh.ch  quest.on 
„!s Teided  in  favor  of  the  author  by  seven  judges  to  fou, 

jrS    Whether  this  right  is  in  any  way  impeached  restra  med 
or1;h:n-away  by  the  statute  8  AnneJ  «;-»  «- Hf  ^f  * 
thai  the  right  is  taken  away  by  the  statute.     And  the  l.o.a 
Chlncellor' econding  Lord  Camden-s  motion  to  reverse,  the 

.,  'T::Z  IpplTLm  the  points  decided,  that  a  majority  of 

-  judges  were  ';Xe°nt*:nTw:;"b  X  stlt"  """'°"' 
but  that  the  same  had  been  taken  aw. ty     y 

The  title  and  preamble  of  the  statute  8  Anne,  ch.  19,  »«  as 
fol  ows  "An  act  for  the  encouragement  of  learnmg  by  vest- 
ing the  copies  of  prilled  books  in  the  authors  or  purchasers  of 
such  copies,  durnig  the  times  therein  mentioned. 

'whereas   prinfers,  booksellers,  and  other  persons  have  o 
late    frequentlv  taken   the  liberty  of  printing,  repnnt.ng    and 
pSli  h  ng   or'causing  to  be  printed,  reprinted    and  published 
r  ok    an!  other  writings  without  the  consent  of  the  authors  - 
proprietors  of  such  books  and  writings,  to  ^  -r  very  g    at  c   a. 
Lent  and  too  often  to  the  ruin  of  t.em  and  their  families,     etc. 


PERTY. 

f  sale ;  and 
nted,  pub- 
lis  question 
n  the  nega- 

did  the  law 
,ch  book  or 
■ard,  reprint 
ry  composi- 
Liestion  was 
the  negative 

on  law,  is  it 
ithor,  by  f  - 
on  the  foun- 
le  conditions 
;ided  that  the 

composition, 
d  publishing 
hich  question 
IS  to  four, 
sd,  restrained, 
udges  decided 
ind  the  Lord 
3  reverse,  the 

a  majority  of 
ht  of  authors, 
itute. 

e,  ch.  19,  is  as 
irning  by  vest- 
•  purchasers  of 

ersons  have  of 
reprinting  and 
and  published, 
the  authors  or 
ery  great  c'ctri- 
■  families,"  etc. 


WHEATON    V.   PETERS. 


ass 


In  7  Term  Rep.  627,  Lord  Kenyon  says:  "All  arguments  m 
the  support  of  the  rights  of  learned  men  ■"/!!?  7      '  Tto 
ever  be  heard  with  great  favor   by  men   of   hberal   mmds  to 
whom  they  are  addressed.     It  was  ,.obably  on   tha    account 
that  when  the  great  question  of  literary  property  was  discussed 
some  judges  of  enlightened  understandmg  went  the  length  of 
maintaining   that  the  right   of   publication   -«ted    exclus  ve  y 
in  the  authors   and   those   who   claimed   under   them    foi    al 
time;  but  the  other  opinion  finally  prevailed,  which  established 
that  the  right  was  confined  to  the  times  limited  by  the  at  of 
Parliament.     And  that,  I  have  no  doubt,  was  the  right  dec- 

*' And  in  the  case  of  the  University  of  Cambridge  v.  ^^yo'^f 
East,3i9,Lord  EUenborough  remarked:  "It  has  been  said  that 
The  s  t.^  of  8  Anne  has  three  objects;but  I  can  not  subdivKl 
the  two  fir.t;  I  think  it  has  only  two.  The  counsel  f 01  the 
pla  ;tfs  contended  that  there  was  no  right  at  common  law  and 
perhaps  there  might  not  be  ;  but  of  that  we  have  not  particularly 

'T^om  the'^^above  authorities,  and  others  which  might  be 
referred  to  if  time  permitted,  the  law  appears  to  be  well  settled 
a  England  that  since  the  statute  of  8  Anne  the  literary  prop- 
erty  0I  an  author  in  his  works  can  only  be  asserted  under  the 
statute,  and  that,  notwithstanding  the  opinion  of  a  majority 
of  the  judges  in  the  great  case  of  Miller  v.  Taylor  was  in 
favor  of  the  common  law  right  before  the  statute  it  is  st.ll 
considered  in  England    as  a  question  by  no  means  free    .rom 

"^^T^hat  an  author,  at  common  law,  has  a  property  in  his  manu- 
script, and  may  obtain  redress  against  any  one  who  deprives  h.m 
of  it,  or  by  improperly  obtaining  a  copy  endeavors  to  realize  a 
profit  by  its  publication,  can  not  be  doubted ;  but  this  is  a  very 
different  right  from  that  which  asserts  a  perpetual  and  exclusive 
property  in  the  future  publication  of  the  work,  after  the  author 
shall  have  published  it  to  the  world. 

The  argument  that  a  literary  man  is  as  much  enl>tled  to  the 
product  of  his  labor  as  any  other  member  of  society,  can  not  be 
controverted.     And  the  answer  is,  that  he  realizes  this  produc 
•oy  the  transfer  of  his  manuscripts,  or  in  the  sale  of  his  works 
when  first  published. 


256      MODES  OF  OBTAINIXG  TITLE  TO  PERSONAL  PROPERTY. 

A  book  is  valuable  on  account  of  the  matter  it  contains,  the 
ideas  it  communicates,  the  Instruction  or  entertainment  it  affords. 
Does  the  author  hold  a  perpetual  property  in  these?  Is  there  an 
implied  contract  by  every  purchaser  of  his  book  that  he  may 
realize  whatever  instruction  or  entertainment  which  t.ie  read- 
ing of  it  shall  give,  but  shall  not  write  out  or  prmt  its  con- 

In  what  respect  does  the  right  of  an  author  differ  from  that 
of  an  individual  who  has  invented  a  most  useful  and  valuable 
machine?  In  the  production  of  this,  his  mmd  has  been  as 
intensely  engaged,  as  long  and  perhaps  as  usefully  to  the 
public,  as  any  distinguished   author  in  the  composition  of  his 

^°The  result  of  their  labors  maybe  equally  beneficial  to  society 
and  in  their  respective  spheres  they  may  be  alike  distmguished 
for  mental  vigor.     Does  the  common  law  give  a  perpetual  ng. 
to  the  author,  and  withhold  it  from  the  inventor?  And  yet  it  has 
never  been  pretended  that  the  latter  could  hold   by  the  common 
law,  any   property  in  his  invention  after   he   shall   have  sold  ,t 

^"it  vt^iild  seem,  therefore,  that  the  existence  of  a  principle  may 
well  be  doubted,  which  operates  so  unequally.  This  is  not  a 
characteristic  of  the  common  law.  It  is  said  to  be  founded  on 
principles  of  justice,  and  that  all  its  rules  must  conform  to  sound 

'' Does  not  the  mat.  who  imitates  the  machine  profit  as  much  by 
the  labor  of  another  as  he  who  imitates  or  republishes  a  book ? 
Can  there  be  a  difference  between  the  types  and  press  with  which 
one  is  formed,  and  the  instruments  used  in  the  construction  of 

t\  f*  otlicrs 

'  That  everv  man  is  entitled  to  the  fruits  of  his  own  labor  niust 
be  admitted';  but  he  can  enjoy  them  only,  except  by  statutory 
provision,  under  the  rules  of  property,  which  regulate  society, 
and  which  define  the  rights  of  things  is  general. 

But  if  the  common  law  right  of  authors  were  shown  to  exist 
in  England,  does  the  same  right  exist,  and  to  the  same  extent, 

"It  is  dLTJiere'can  be  no  common  law  of  the  United  States. 
The  federal  government  is  composed  of  twenty-four  sovereign 
and  independent  states,  each  of  which  may  have  its  local  usages. 


^M 


ERTY. 


WHEATON  V.  PETERS. 


257 


ntains,  the 
t  it  affords. 
Is  there  an 
lat  he  may 
1  tlie  read- 
lit  its  con- 

r  from  that 
id  valuable 
as  been  as 
illy  to  the 
ition  of  his 

il  to  society, 
istinguished 
petual  right 
nd  yet  it  has 
the  common 
have  sold  it 

rinciple  may 
'his  is  not  a 
;  founded  on 
orm  to  sound 

t  as  much  by 
ishes  a  book? 
ss  with  which 
)nstruction  of 

m  labor  must 
:  by  statutory 
;ulate  society, 

hown  to  exist 
same  extent, 

United  States, 
'our  sovereign 
s  local  usages, 


customs,  and  common  law.  There  is  no  principle  which  per- 
vades the  Union  and  has  the  authority  of  law  that  is  not  embod- 
ied in  the  constitution  or  laws  of  the  Union.  The  common 
law  could  be  made  a  part  of  our  federal  system  only  by  legisla- 
tive adoption. 

When,  therefore,  a  common  law  right  is  asserted,  we  must 
look  to  the  state  in  which  the  controversy  originated.  And  in 
the  case  under  consideration,  as  the  copyright  was  entered 
in  the  clerk's  office  of  the  district  court  of  Pennsylvania,  for  the 
first  volume  of  the  book  in  controversy,  and  it  was  published 
in  that  state,  we  may  inquire  whether  the  common  law  as  to 
copyrights,  if  any  existed,  was  adopted  in  Pennsylvania. 

It  is  insisted  that  our  ancestors,  when  they  emigrated  to  this 
country,  brought  with  ihem  the  English  common  law  as  a  part 
of  iheir  herita^je. 

That  this  was  the  case  to  u  limited  extent  is  admitted.  No 
one  will  contend  that  the  common  law,  as  it  existed  in  England, 
has  ever  been  in  force  in  all  its  provisions  in  any  state  in  this 
Union.  It  was  adopted  so  far  only  as  its  principles  were  suited 
to  the  condition  of  the  colonies;  and  from  this  circumstance  we 
see  what  is  common  law  in  one  state  is  not  so  considered  in 
another.  The  judicial  decisions,  the  usages  and  customs  of  the 
respective  states  must  determine  how  far  the  common  law  has 
been  introduced  and  sanctioned  in  each. 

In  the  argument,  it  was  insisted  that  no  presumption  could 
be  drawn  against  the  existence  of  the  common  law  as  to  copy- 
rights, in  Pennsylvania,  from  the  fact  of  its  never  having  been 
asserted  until  the  commencement  of  this  suit. 

It  may  be  true,  in  general,  that  the  failure  to  assert  any  par- 
ticular right  may  afford  no  evidence  of  the  nonexistence  of 
such  right.     But  the  present  case  may  well  form  an  exception 

to  this  rule. 

If  the  common  law,  in  all  its  provisions,  has  not  been  intro- 
duced into  Pennsylvania,  to  what  extent  has  it  been  adopted  ? 
Must  not  this  court  have  some  evidence  on  this  subject?  If  no 
right,  such  us  is  set  up  by  the  complainants,  has  heretofore  been 
asserted,  no  custom  or  usage  established,  no  judicial  decision 
been  given,  can  the  conclusion  be  justified  that  by  the  common 
law  of  Pennsylvania,  an  author  has  a  perpetual  property  in  the 
copyright  of  his  works? 


-.»,i«.vr  TITLE  TO  PEUSONAL  PUOPERTY. 
258       MODES  OF  OBTAINING  TITLE    lu 

not  made  a  subject  of  ]udiciai_  1  s  ^.^^^^  ^,_ 

the  publication  of  new  works  ""d^^  '  ""J     ^^^^  ,v,,    exclusive 

and   a  little  more  than  a  ^^"  "•^^'^''^^^e  right  of  auth^^^ 

C-an  It  uc  learned  jurists  of  England,  at  a 

period  m  •"' ^r  was  brought  h,.o  the  wUds  o£  Pennsyl»»ma 

I"  rfi:::rer;;ir  wiu  ».ed » .,«.  c„„diuon. 

" V,.  tbere  .  ano.he,  vie-.™  ---f— o„s..uUo„  .. 

.'n*;?siTT;:  :*.".. iron,..  *,„  b„ve  ^.. 

the  U""«"'f"  "•'',"    „j  science  and  useful  arts,  by  securing 
"to  promote  the  piogress  ol  sci^.  exclusive  right 

for  limited  times  to  authors  and    nventois  ti  . 

mentioned." 


^Jm^m 


PERTY. 

0  doubt  the 
others  of  a 

authors  was 
\gl.\nd  until 
of  Miller  v. 
e  the  colony 
ommon  law 
England  ? 
ed,  was  then 
d  regulating 
the  king,  as 
he    exclusive 
k  of  common 

recognized  in 
lized.  Long 
controversy, 
id  perplexity ; 
ecided  by  the 
authors  could 
statute.     The 

it,  so  involved 
England,  at  a 
r  learning  and 
[  Pennsylvania 
condition  ? 

Constitution  of 
.all  have  powe. 
rts,  by  securing 
exclusive  right 
And  in  pursu- 
issed  the  act  of 

ent  of  learning. 

1  books,   to  the 
he  times  therein 


WHEATON   V.  PETERS. 


259 


In  the  first  section  of  this  act  it  is  provided,  "that  from  and 
after  its  passage,  the  author  and  authors  of  any  map,  chart, 
book,  or  books,  already  printed  within  these  United  States, 
being  a  citizen,  etc.,  who  hath  or  have  not  transferred  to  any 
other  person  the  copyright  of  such  map,  chart,  book,  or  books, 
etc.,  shall  have  the  sole  right  and  liberty  of  printing,  reprmtmg, 
publishing,  and  vending  such  map,  book,  or  books,  for  fourteen 

years."  , 

In  behalf  of  the  common  law  right  an  argument  has  been 
drawn  from  the  word  scctirc,  which  is  used  in  relation  to  this 
right,  both  in  the  constitution  and  in  the  acts  of  congress. 
This' word,  when  used  as  a  verb  active,  signifies  to  protect, 
insure,  save,  ascertain,  etc. 

The  counsel  for  the  complainants  insist  that  the  term,  as  used, 
clearly  indicates  an  intention,  not  to  originate  a  right,  but  to 
protect  one  already  in  existence. 

There  is  no  mode  by  which  the  meaning  afiixed  to  any  word 
or  sentence,  by  a  deliberative  body,  can  be  so  well  ascertained, 
as  by  comparing  it  with  the  words  and  sentences  with  which  it 
stands  connected.  Bv  this  rule  the  word  secure,  as  used  in  the 
constitution,  could  not  mean  the  protection  of  an  acknowledged 
legal  right.  It  refers  to  inventors  as  well  as  authors,  and  it  has 
never  been  pretended  by  any  one,  either  in  this  country  or  in 
England,  that  an  inventor  has  a  perpetual  right,  at  common 
law,  to  sell  the  thing  invented. 

And  if  the  word  secure  is  used  in  the  constitution  in  refer- 
ence to  a  future  right,  was  it  not  so  used  in  the  act  of  consiess? 
But  it  is  said,  that  part  of  the  first  section  of  the  act  of  con- 
gress  which  has  been  quoted,  a  copyright  is  not  only  recognized 
as  existing,  but  that  it  may  be  assigned,  as  the  rights  of  the 
assignee  are  protected,  the  same  as  those  of  the  author. 

As  before  stated,  an  author  has,  by  the  common  law,  a  prop- 
erty in  his  manuscript;  and  there  can  be  no  doubt  that  the 
rights  of  an  assignee  of  such  manuscript  would  be  protected  by 
a  court  of  chancery.  This  is  presumed  to  be  the  copyright 
recognized  in  the  act,  and  which  was  intended  to  be  protected 
by  its  provisions.  And  this  protection  was  given,  as  well  to 
books  published  under  such  circumstances,  as  to  manuscript 

copies.  ,, ,       ,  ,     .  ,  , 

That  congress,  in  passing  the  act  of  1790,  did  not  legislate 
in  reference  to  existing  rights  appears  clear  from  the  provision 


.6o      MODES  OK  OHTAINIXG  TITLE  TO  PEUSONAL  PUOPKUTV. 

th.t  the  author,  etc.,  "shall  have  the  sole  right  and  liberty  of 
,t^.  '  e  c  Now,  if  this  exclusive  right  existed  at  common 
r  ;  Zi  congres^  .4.  about  to  adopt  legislative  prov.s.ons 
:: '.:  pro^ectfon,  would  they  have  used  this  language  C^u  d 
thev  have  deemed  it  necessary  to  vest  a  right  aheady  vested^ 
SucCretmption  is  refuted  by  the  words  above  ,^ted,  and 
their  force  is  not  lessened  by  any  other  part  of  the  act. 

----;  ^C^^:;r  "^iirr  ^Tt^s 

^"  m  irritations  it  would  seem  that  if  the  right^of 
the  complainants  can  be  sustained,  it  must  be  sustan.ed  under 
th  c  s  of  ongress.  Such  was,  probably,  the  opnuon  of  the 
couns  who  frimed  the  bill,  as  the  right  is  asserted  under  he 
St.  e  and  no  particular  reference  is  made  to  .  as  ex,stu.g 
r  r-nlaw.  V  claim,  then,  of  the  -.plaman  s  -us 
be   examined   in   reference  to  the   statutes   under   wh.ch  >t 

^Thet  are  but  two  statutes  which  have  ^  ^eanng  on  tl>is 
subject;  one  of  them  has  already  been  named,  and  the  other 
was  passed  the  twenty-ninth  of  April,  1802 

The  first  section  of  the  act  of  179°  provides,    hat  an  author 
orlis  as   g.  ee  "shall  have  the  sole  right  and  liberty  o    print- 
•„,  repr  Sing,  publishing,  and  vending  such  map,  chart   book 
"books   for  the  term  of  fourteen  years,  from  the  recording  of 
Ltt  thereof  in  the  clerk's  office,   as  he-^jnafter  directed : 
.„d  that  the  author,  etc.,  in  books  not  published,  etc.,    hall 
h"ve  the  sole  right  and  liberty  of  printing,  reprinting,  publish- 
nTand  vending  such  map,  chart,  book,  or  books,  for  the  like 
t^f.   of  fourteen  years,  f'rom  the  time  of  recording  the  title 
heTeof  in  the  clerk's  office  as  aforesaid.     And  at  the  expiration 
of  the  s^  term,  the  author,  etc.,  shall  have  the  same  exclusive 
:ghtcon^nuedtohim,etc.     for  the   further  term  of  fou..een 
vears-  provided  he  or  they  shall  cause  the  title  thereof  to  be  a 
ec'nd  time  recorded,  and  published  in  the  same  manner  as  1 
herchlfter  directed,   and  .hat  within   six   months  before    the 
expiration  of  the  first  term  of  fo-^een  years. 

The  third  sect  on  provides,  that     no  person  b»ai 
tole  benefit  of  this  act,  etc.,  unless  he  shall  first  deposit,  etc., 


"  •- 


•ERTY. 

liberty  of 
it  common 
provisions 
e  ?  Could 
[ly  vested  ? 
uoted,  and 
ct. 

an  existing 
)e  the  clear 
nces  under 

the  right  of 
lined  under 
inion  of  the 
i  under  the 
t  as  existing 
inants  must 
which  it  is 

ring  on  this 
id  the  other 

at  an  author 
irty  of  print- 
chart,  book, 
recording  of 
ter  directed: 
!d,  etc.,  shall 
ing,  publish- 
i,  for  the  like 
ding  the  title 
the  expiration 
ime  exclusive 
1  of  fourteen 
lereof  to  be  a 
manner  as  is 
is  before    the 

all  be  entitled 
;  deposit,  etc., 


WHEATON    V.  PETERS. 


361 


a  printed  copy  of  the  title  in  the  clerk's  office,"  etc.  "And 
such  author  or  proprietor  shall,  within  two  months  from  the 
date  thereof,  cause  a  copy  of  said  record  to  be  published  in 
one  or  more  of  the  newspapers  printed  in  the  United  States  for 
the  space  of  four  weeks." 

And  the  fourth  section  enacts  that  "the  author,  etc.,  shall, 
within  six  months  after  the  publishing  thereof,  deliver  or  cause 
to  be  delivered  to  the  secretary  of  state  a  copy  of  the  same,  to 
be  preserved  in  his  office." 

The  first  section  of  the  act  of  1802  provides  that  "every 
person  who  shall  claim  to  be  the  author,  etc.,  before  he  shall 
be  entitled  to  the  benefit  of  the  act  entitled  an  act  for  the 
encouragement  of  learning,  by  securing  the  copies  of  maps, 
charts,  and  books,  to  the  authors  and  proprietors  of  such  copies, 
during  the  time  therein  mentioned,  he  shall,  in  addition  to  the 
requisites  enjoined  in  the  third  and  fourth  sections  of  said  act, 
if  a  book  or  books,  give  information  by  causing  the  copy  of  the 
record  which  by  said  act  he  is  required  to  publish,  to  be 
inserted  in  the  page  of  the  book  next  to  the  title." 

These  are  subsequently  the  provisions  by  which  the  com- 
plainants' right  must  be  tested.  They  claim  under  a  renewal 
of  the  term,  but  this  necessarily  involves  the  validity  of  the 
right,  under  the  first  as  well  as  the  second  term.  In  the  lan- 
guage of  the  statute,  the  "same  exclusive  right"  is  continued 
the  second  term  that  existed  the  first. 

It  will  be  observed  that  a  right  accrues  under  the  act  of  1790 

from  the  time  a  copy  of  the  title  of  the  book  is  deposited  in  the 

clerk's  office.    But  the  act  of  1802  adds  another  requisite  to  the 

accruing  of  the  right,  and  that  is,  that  the  record  made  by  the 

•  clerk  shall  be  published  in  the  page  next  to  the  title-page  of  the 

book. 

And  it  is  argued  with  great  earnestness  and  ability  that  these 
are  the  only  requisites  to  the  perfection  of  the  complainants' 
title;  that  the  requisition  of  the  third  section  to  give  public 
notice  in  the  newspapers,  and  that  contained  in  the  fourth  to 
deposit  a  copy  in  the  department  of  state,  are  acts  subsequent 
to  the  accruing  of  the  right,  and  whether  they  are  performed  or 
not,  can  not  materially  affect  the  title. 

The  case  is  compared  to  a  grant  with  conditions  subsequent, 
which  can  never  operate  as  a  forfeiture  of  the  title.     It  is  said, 


262       MOOES  OP  OBTAINING  TITLE  TO  PERSONAL  PHOPERTV. 

also,  that  the  object  of  the  publication  in  tl-  newspaper  and 
the  deposit  of  the  copy  in  the  department  of  ^^^^'^  ^  ^  ^  ^  ^ 
to  L'ive  notice  to  the  public;  and  that  such  acts,  not  be  ^ 
ssenti^..  to  the  title,  after  so  .reat  a  lapse  of  f-  -y  we 
presumed.  That  if  neither  act  had  been  done,  the  ^^g'^  «^;*^« 
party  having  accrued  before  either  was  required  to  be  done, 

"^  TLn;i:;:f  h^I^een  shown,  does  not  ^ist  at  common 

law-it  originated,  if   at  all,  under  the  acts  of  -ng-ss      No 

o?e  can  deny  that  when   the  legislature   are  about  to  vest  an 

:    lu"  e  r"ht  in  an  author  or  an  inventor,  they  have  the  powe 

o  p  e  c  ibe  the  conditions  on  which  such  right  shall  be  enjoyed 
to  prescriuL  ui^  ,         j^      ^         ^^^ 

and  that  no  one  can  avad  ^""«^'^.  °  . '""'' .X  .rw 
substantially  comply  with  the  requ.s.t.ons  oithelo^_ 

This  principle  is  familiar,  as  .t  '^^^'''^'^,7^ "^  "fj' '    f  any 

is  the  same  in  relation  to  the  copyright  of  a  book      If  any 

ifft^nce  shall  be  made,  as  't  respects  a  stnctconformUy        he 

law,  it  would  seem  to  be  more  reasonable  to  make  the  require 

•nent  of  the  author  rather  than  the  inventor.  ,„„„,  „f 

tL  papers  of  the  latter  are  examined  in  the  department  of 

,„  ■„  the  order  in  which  they  must  naturally  transprrc.     F.rst 
Z  "tie  of  the  book  is  to  be  deposited  with  the  clerk,  and  the 
odi:  makes  must  be  inserted  in  the  «-'  -  --''„P»f   ' 

Sirsir:::thrrt;^%=r.he^= 
-  r:;  :rrtr^it°;:rrTf;^^vr^ 

"■SltJartre^rorlTiompelled  either  to  give  notice  in 
the  nl.pap.rs  or  deposit  a  copy  in   the    state   depatme." 
The  S.Z  affixes  no  penalty  for  a  failure  "  P"  »™  jt Vn 
these    acts;  and  it  provides  no  mean,  by  wh.ch  ,t  may  been 

'°Bu'we  are  told  they   «e  unimportant  acts.    If  they  are 


^^ 


PERTY. 

papers  and 
,vas  merely 
not  beinj? 
nay  well  be 
right  of  the 
be  done,  it 

at  commori 
igress.  No 
it  to  vest  an 
ethe  power 
be  enjoyed ; 
ho  does  not 

V. 

ghts ;  and  it 

)ok.     If  any 

irmity  to  the 

the  require- 

jpartment  of 
eral ;  but  the 
f,  unchecked 

:ure  his  right 
ipirc.  First, 
lerk,  and  the 
second  page ; 
e  given ;  and 
book,  a  copy 

ig  made  with 
it  what  is  the 
he  other  two 

give  notice  in 

department? 

form  either  of 

it  may  be  en- 

If  they   are 


WHEATON    V.  PETERS. 


a63 


indeed  wholly  unimportant,  congress  acted  unwisely  in  requir- 
ing them  to  be  done.  But  whether  they  are  important  or  not 
is  not  for  the  court  to  determine,  but  the  legislature ;  and  in 
what  light  they  were  considered  by  the  legislature  we  can 
learn  only  by  their  otTicial  acts. 

Judging  then  of  these  acts  by  this  rule,  we  are  not  at  liberty 
to  say  they  are  unimportant  and  may  be  dispensed  with.  They 
are  acts  which  the  law  requires  to  be  done,  and  may  this  court 
dispense  with  their  performance? 

Hut  the  inquiry  is  made,  shall  the  nonperformance  of  these 
subsequent  conditions  operate  as  a  forfeiture  of  the  right? 

The  answer  is,  that  this  is  not  a  technical  grant  of  precedent 
and  subsequent  condHions.  All  the  conditions  are  important ; 
the  law  requires  them  to  be  performed;  and,  consequently, 
their  performance  is  essential  to  a  perfect  title.  On  the  per- 
formance of  a  part  of  them,  the  right  vests;  and  this  was  es- 
sential to  its  protection  under  the  statute;  but  other  acts  are  to 
be  done  unless  congress  have  legislated  in  vain  to  render  the 
right  perfect. 

The  notice  could  not  be  published  until  after  the  entry  with 
the  clerk,  nor  could  the  book  be  deposited  with  the  secretary 
of  state  until  it  was  published.  But  these  are  acts  not  less 
important  than  those  which  are  required  to  be  done  previously. 
They  form  a  part  of  the  title,  and  until  they  are  performed  the 
title  is  not  perfect. 

The  deposit  of  the  book  in  the  department  of  state  may  be 
important  to  identify  it  at  any  future  period  should  the  copy- 
right be  contested  or  an  unfounded  claim  of  authorship  as- 
serted. 

But,  if  doubts  could  be  entertained  whether  the  notice  and 
deposit  of  the  book  in  the  state  department  were  essential  to 
the  title  under  the  act  of  1790,  on  which  act  my  opinion  is 
principal!  founded,  though  I  consider  it  in  connection  with  the 
other  act ;  there  is,  in  the  opinion  of  three  of  the  judges,  no 
ground  for  doubt  under  the  act  of  1S02.  The  latter  act  de- 
clares that  every  author,  etc.,  before  he  shall  be  entitled  to  the 
benefit  of  the  former  act,  shall,  "in  addition  to  the  requisitions 
enjoined  in  the  third  and  fourth  sections  of  said  act,  if  a  book, 
publish,"  etc. 

Is  not  this  a  clear  exposition  of  the  first  act?     Can  an  author 


364      MOOES  OK  OHTAININO  TITLE  TO  PEUSONAI.  PUOfKUTY. 

claim  the  benefit  of  the  act  of  1790  without  performing  "the 
requisites  enjoined  in  the  third  and  fourth  sections  ol  .tr 
If  there  be  any  meaning  in  language,  the  act  of  1.S02,  the 
three  judges  think,  requires  these  requisites  to  be  performed 
-in  addition-  to  the  one  required  by  that  act,  before  an  au- 
thor  etc.,  "shall  be  entitled  to  the  benefit  of  the  first  act." 

The  rule  by  which  conditions  precedent  and  subsecjuent  arc 
construed  in  a  grant,  can  have  no  application  to  the  case  under 
consideration,  as  every   requisite  in  both  acts  is  essential  to  the 

'  A  renewal  of  the  term  of  fourteen  years  can  only  be  obtained 
by  havin-  the  title-page  recorded  with  the  clerk,  and  the  record 
published  on  the  page  next  to  that  of  the  title,  and  public  not.ce 
given  within  six  months  before  the  expiration  of  the  first  term. 
In  opposition  to  the  constructio.i  of  the  above  statute,  as  now 
<.iven,  the  counsel  for  the  complainants  referred  to  several  de- 
cisions given  in  England  on  the  construction  of  the  statutes  of  b 
Anne  and  other  statutes. 

In  the  case  of  Beckford  v.  Hood,  7  Term  Rep.  630,  the  court 
of  King's   Bench    decided,    "that  an    author,  whose    work  is 
printed   before   the  expiration  of  twentyeight   years  from  the 
first   publicationof  it,  may   maintain  an  action  on  the    case  for 
damages    against  the   offending   party,  although  the  work  was 
not  entered  at  Stationers  Hall."     But  this  entry  was  necessary 
only  to  subject  the  offender  to  certain  penalties  provided  in  the 
statute  of  8  Anne.     This  suit  brought  was  not  for  the  penalties, 
and,  consequently,  the  entry  of  the  work  at  Stationers  Hall  was 
not  made  a  question  in  the   case.     In  the  case  o   Blackwell  y 
Harper,  2  Atk.  95.  Lord    Hardwicke  is  reported  to  have  said 
upon  the  act  of  S  Anne,  c.  19,  "the  clause  of  registering  with 
the  stationers  company  is  relative  to  the  penalty,  and  the  prop- 
erty can  not  vest  without  such  entry;"  for  the  words  are    "that 
'  nothing  in  this  act  shall  be  construed  to  subject  any  bookseller, 
etc     to  the   forfeitures,  etc.,  by  reason  of  printing    any  book, 
etc"'   unless  the  title  to  the  copy  of  such  book,  hereafter  pub- 
lished, shall,  before  such  publicr.tion,  be  entered  in  the  register 
boot  of  the  company  of  stationers."  ^  .    .u 

The  very  language  quoted  by  his  lordship  shows  that  the 
entry  was  not  necessary  to  an  investiture  of  the  title,  but  to 
the  recovery  of  the  penalties  provided  in  the  act  against  those 
who  pirated  the  work. 


^^ 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


^ 


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A 


fe 
^ 


1.0 


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1.25 


If:  IB 


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2.2 


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Photographic 

Sciences 
Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


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f/j 


«^ 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  iVIicroreproductions  /  Institut  Canadian  de  microreproductions  historiques 


^^. 


VVKEATOX    V.    PETERS. 


265 


His  lordship  decided  in  the  same  case  that  "under  an  act 
of  parliament,  providing  that  a  certain  inventor  shall  have  the 
sole  right  and  libcrtv  of  printing  and  reprinting  ccrtani  prmts 
for  the  term  of  fourteen  years,  and  to  commence  from  the  day 
of  first  publishing  thereof,  which  shall  be  truly  engraved  with 
the  name  of  the  proprietor  on  each  plate,  and  printed  on  every 
such  print  or  prints,"  the  property  in  the  prints  vests  abso- 
lutely in  the  engraver,  "though  the  day  of   publication    is  not 

mentioned." 

The  authority  of  this  case  is  seriously  questione '  in  the  case 
of  Newton  v.  Cowie,  4  Bing.  2^1.  And  it  would  seem, 
from  the  decision  of  Lord  Hardwicke,  that  he  had  doubts  of 
the  correctness  of  the  decision,  as  he  decreed  an  injunction 
without  bygone  profits.  And  Lord  Alvanly,  in  the  case  ot 
Harrison  v.  Hogg,  cited  in  4  Bing.  242,  said  "that  he  was  glad 
he  was  relieved  from  deciding  on  the  same  act,  as  he  was  in- 
clined to  differ  from  Lord  Hardwicke." 

By  a  reference  to  the  English  authorities  in  the  construction 
of  statutes  somewhat  analogous  to  those  under  which  the 
complainants  set  up  their  right,  it  will  be  found  that  the  de- 
cisions often  conflict  with  each  other;  but  it  is  believed  that  no 
settled  construction  has  been  given  to  any  British  statutes  in 
all  respects  similar  to  those  under  consideration,  which  is  at 
variance  with  the  one  now  given.  If,  however,  such  an  in- 
stance could  be  found,  it  would  not  lessen  the  confidence  we 
feel  in  the  correctness  of  the  view  which  we  have  taken, 

The  act  of  congress  under  which  Mr.  Wheaton,  one  of  the 
complainants,  in  his  capacity  of  reporter,  was  required  to  de- 
liver eighty  copies  of  each  volume  of  his  reports  to  the  depart- 
ment of  state,  and  which  were,  probably,  faithfully  delivered, 
does  not  exonerate  him  from  the  deposit  of  a  copy  under  the 
act  of  1 790.  The  eighty  volumes  were  delivered  for  a  different 
purpose  ;  and  can  not  excuse  the  deposit  of  the  one   volume   as 

specially  required.  ,  j      ■ 

The  construction  of  the  acts  of  congress  being  settled,  in 
the  further  consideration  of  the  case  it  would  become  necessary 
to  look  into  the  evidence  and  ascertain  whether  the  complain- 
ants have  not  shown  a  substantial  compliance  with  every  legal 
requisite.  But  on  reading  the  evidence  we  entertain  doubts 
which  induce  us  to  remand  the  cause  to  the  circuit  court 
where  the  facts  can  be  ascertained  by  a  jury. 


266       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

And  the  cause  is  accordingly  remanded  to  the  circuit  court 
with  directions  to  that  court  to  order   an   issue   of   facts   to  be 
examined  and  tried  by  a  jury  at   the   bar   of   said   court   upon 
thispoint,  vi/..,  vvliethertiiesaid    Wheaton    as   author   or    a.iy 
other  person  as  proprietor,    had  complied    with    the    requisites 
prescribed  by  the  third  and  fourth  sections   of  the  said    act    of 
congress,  passed  the  thirty-first  day  of  May,  1790,  i"  regard  to  the 
volumes  of  Wheaton's  Reports  in  the  said  bill  mentioned,  or  in 
regard  to  one  or  more  of  them  in  the  following  particulars,  viz., 
whether   the    said   Wheaton   or   proprietor   did,     within    two 
months  from  the  date  of  the  recording   thereof   in    the    clerk's 
office  of  the  district  court,  cause  a  copy  of  the  said  record  to  be 
published  in  one  or  more   of   the    newspapers   printed    in   the 
resident  states   for  the  sp.ice  of  four  weeks ;    and    whether    the 
said  Wheaton  or  proprietor  after    the   publishing    thereof,    did 
deliver  or  cause  to  be  delivered  to  the  secretary  of  state  of   the 
United  Stales,  a  copy  of  the  same  to  be  preserved  in  his  office, 
jiccoiding  to  the  provisions  of  the  third  and  fourth    sections    of 

the  said  act.  . 

And  if  the  said  requisites  have  not  been  complied  with  m 
regard  to  all  the  said  volumes,  then  the  jury  to  find  in  particular 
in  regard  to  what  volumes  they  or  either  of  them  have  been    so 

complied  with.  . 

It  may  be  proper  to  remark  that  the  court  are  unanimously 
of  opinion  that  no  reporter  has  or  can  have  any  copyright  m 
the  written  opinions  delivered  by  this  court,  and  that  the 
judges  thereof  can  not  confer  on  any  reporter  any  such  right. 

CoNsuLT-Dudley  v.  Mahew,  3  N.  Y.  9;  Rees  v.  Peltzer,  75  111.  475? 
Aronson  v.  Baker,  43  N.  J.  C^qO  S^S- 


EllTY. 

•cuit  court 
icts   to  be 
)uit   upon 
)r   or    a.iy 
requisites 
lid    act    of 
gard  to  the 
)ned,  or  in 
ulars,  viz., 
■ithin    two 
;he    clerk's 
;cord  to  be 
:ed    in   the 
hether    the 
lereof,    did 
tate  of   the 
1  his  office, 
sections    of 

ed  with  in 
n  particuhir 
ve  been    so 

nanimously 
apyright  in 
id  that  the 
uch  right. 

r,  75  111-  475; 


BAKTLETTE    V.  CRITTENDEN.  267 

§  54.  Same— Publication,  -what  is  a. 

BARTLETTE  v.  CRITTENDEN. 

[4  McLean,  300.] 

Umicci  Siatcs  Ciraiit  Court,  District  of  Ohio,  1847. 

Opinion  of  the  court.— This  is  an   application    to    enjoin 
the  defendants  from  printing,  publishing,  or  selling  a  work  de- 
nominated "An  inductive  and  practical  system  of  double-entry 
bookkeeping,  on  an  entirely  new  plan,"  on  the  ground    that  a 
m.aterial  part  of  the   manuscript,   and  the  arrangement,  were 
the  work  of  the  complainant,  and   were  pirated  from    him  by 
the  defendants.     It  appears  that  the   complainant  for  twelve 
years  had  been   engaged  in  teaching  the   art   of   bookkeeping, 
in  the  city  of  Cincinnati  and  other  places.     That  he  had  reduced 
to  writing  tlie  system  he  taught  on  separate  cards   for  the  con- 
venience of  imparting  instruction  to  his   pupils ;    and    that   he 
permitted  his  students  to  copy  these    cards,   with  the    view   to 
their  own   advantage   and   to  enable   them   to   instruct  others. 
That  Jonathan  Jones,  being  qualified  in  the  school  of  the  com- 
plainant, as  a  teacher,  and  having  copied  the  manuscripts  of 
the  complainant,  engaged,  in  connection  with  him,  to  teach  a 
commercial  school  in  St.  Louis.     While  thus  engaged,  A.  F. 
Crittenden,  one  of  the  defendants,   entered   the  school  at  St. 
Louis  as  a  student,  and  was  permitted  to  copy  the  manuscripts 
of  the   complainant,  in  the  possession  of  Jones  ;  and  from  those 
manuscripts,    with    certain  alterations,   he    made    up   the  first 
ninety-two  pages  of  the  book,  under  the  above  title,  which  was 
published  in  Philadelphia,  in  connection  with  his  brother,  by 
E.  C.  &  J.  Biddle,  two  of  the  defendants,  in  the  present  year. 
The  answers  of  the  defendants  either  deny  the   allegations  of 
the  bill,  or  do  not  admit  them,  and  call  for  proof  of  the  facts 
stated.     On  this  motion  for  an  injunction  the  merits  of  the  case 
have  been  discussed,  with  much  research  and  ability. 

This  application  is  made  under  the  ninth  section  of  the  act  of 
congress  of  the  third  of  February,  1S31  (4  Stat.  438),  which 
provides,  that  "any  person  or  persons  who  shall  print  or  publish 


26S      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

any  manuscript  whatever,  without  the  consent  of  the  author  or 
legal  proprietor  first  obtained,  etc.,  shall  be  liable  to  suffer  and 
pay  to  the  author  or  proprietor,  all  damages  occasioned  by  such 
injury,"  etc.  And  power  is  given  to  grant  an  injunction  to 
restrain  the  publication.  The  first  section  of  the  act  of  the 
thirtieth  of  June,  1S34  (4  Stat.,  p.  72S,  c.  157),  requires  all 
deeds  or  instruments  in  writing  for  the  transfer  or  assignment 
of  copyrights,  to  be  acknowledged  and  recorded.  At  common 
law,  independently  of  the  statute,  I  have  no  doubt,  the  author 
of  a  manuscript  might  obtain  redress  against  one  who  had  sur- 
reptitiously got  possession  of  it.  And  on  general  equitable 
principles,  I  see  no  objection  to  relief  being  also  given,  under 
like  circumstances,  by  a  court  of  chancery.  But  this  is  a  pro- 
ceeding under  the  statute. 

The  defendants  contend  that  the  complainant,  by  suffering 
copies   of  his  manuscripts  to  be  taken,  abandoned  them  to  the 
public.     The  principle  is  the  same,  it  is  alleged,  in  regard  to 
copyrights  and  patents.     And  that  a  consent    r  permission  of 
the  author  to  use  the  manuscripts,  is  as  fatai   to  his  exclusive 
right,  as  the  consent  of  the  inventor  to  use  the  thing  invented. 
Rundell    v.    Murray    (Saunders  v.    Smith),    3    Mylne   &   C. 
711,  73S,  730,  735;   Millar  v.  Taylor,  4  Burrows,  186  (2303); 
Barfield  v.  Nicholson,  3   Sim.  &  S.  i.     To  show  the  analogy 
between    copvright  and  patents,  the  defendants  cited  Whitte- 
more    v.    Carter,    i  Gall.    478;    Miller   v.    Sillsbee,  4  Mason, 
loS,   in  which  the  question   considernl  was,   did   the  inventor 
suffer  the  things  patented  to  go  into  public  use  without  objec- 
tion?    Walcot  V.  Walker,  7  Ves.  i;  Piatt  v.  Button,  19  Ves. 
44S;   Wyeth  V.  Stone,  i   Story,  273,  Fed.  Cas.  number  18107. 
The  seventh  section  of  the  act  of  the   third  of  March,  1S39 
(5  Stat.  354),  declares  that  a  purchaser  from  the  inventor  of  the 
thing  invented,  before   a  patent  is  obtained,  shall   continue   to 
enjoy  the  same  right  after  the  obtainment  of  the  patent  as  before 
if,  ami  that  such  sale  shall  not  invalidate  the  patent,  unless  there 
has  been  an  abandonment,  or  the  purchase  has  been  made  more 
than  two  years  before  the  application   for  the  patent.     Before 
this  act,  a  sale  of  the  right  would  have  been  an  abandonment 
to    the    public   by   the    inventor.      The    decisions,    therefore, 
referred  to,  do  not  apply  to  cases  arising  under  this  statute.     A 
sale  of  the  right  is  not  an  abandonment,  if  made  within  two 


OPERTV. 

lie  author  or 
to  suffer  and 
i^ned  by  such 
injunction  to 
e    act  of  the 

requires  all 
r  assignment 

At  common 
t,  the  author 
vho  had  sur- 
ral  equitable 

given,  under 
this  is  a  pro- 

by  suffering 
d  them  to  the 
,  in  regard  to 
permission  of 
his  exclusive 
ing  invented. 
Mylne  &  C. 
,  i86  (2303); 
,'  the  analogy 
cited  Whitte- 
)ee,  4  Mason, 

I  the  inventor 
vithout  objec- 
tton,  19  Ves. 
umber  18107. 
:  March,  1S39 
inventor  of  the 

II  continue  to 
atent  as  before 
it,  unless  there 
;en  made  more 
atent.  Before 
I  abandonment 
ins,  therefore, 
lis  statute.  A 
ie  within  two 


BARTLETTE    V.    CRITTENDEN. 


269 


years  before  the  application  for  a  patent,  as  the  law  now  stands ; 
and  It  may  be  a  matter  of  some  ditllculty,  within  the  above  lim- 
itation of  two  years,  to  determine  what  act  shall  amount  to  an  . 
a])andonment.'  Where  the  act  is  accompanied  by  a  declaration 
to  that  effect,  there  can  be  no  doubt ;  but  if  a  sale  be  not  an 
abandonment,  a  mere  acquiescence  in  the  use  of  the  invention 
would  seem  not  to  be.  Within  the  two  years,  to  constitute  an 
abandonment,  the  intention  to  do  so  must  be  expressed  or  nec- 
essarily implied  from  the  facts  and  circumstances  01  the  case. 
It  is  a  question  of  intention,  as  to  the  extent  of  the  license,  of 
which  we  must  judge,  as  we  are  called  to  do  in  other  cases. 
iiut  the  limitation  of  two  years  does  not  apply  in  this  case, 
should  i.  copyright  be  considered  in  principle  identical  with  an 
invention  of  a  machine,  as  more  than  two  years  have  elapsed 
since  copies  of  the  complainant's  manuscripts  were  taken  with 

his  consent. 

The    question    arises   upon   the   facts   stated,  and    must  be 
decided  on  general  principles.     In  the  first  place,  there  was  no 
consent  of    the   complainant   that  his   manuscripts    should  be 
printed.     That  they  were  not  prepared  for  the  press  is  admitted. 
They  were  without  index   or   preface,  although,  as    alleged, 
they   may   have    contained   the    substantial    parts  of  the  com- 
plainant's system  which,   in  due  time,   he    intended    to  print. 
Copies  of  the  manuscripts  were  taken  for  the  benefit  of  his 
pupils   and  to  enable  them  to  te-.ch  others.     This,  from    the 
facts  and  circumstances  of  the  c;Kse>  seems  to  have  been  the 
extent  of  the  complainant's  consent.     It  is  contended  that  this 
is  an  abandonment  to  the  public,  and  is  as  much  a  publication 
as  printing  the  manuscripts.     That  printing  is  only  one  mode 
of    publication,  which  may  be    done  as  well  by    multiplying 
manuscript  copies.     This   is    not  denied,  but    the    inquiry   is. 
Does   such  a   publication    constitute  an    abandonment?      The 
complainant  is,  no  doubt,  bound  by  this  consent,  and  no  court 
can  afford  him  any  aid  in  modifying  01  withdrawing  it.     The 
students  of  Bartlette  who  made  these  copies  have  a  right  to 
them  and  to  their  use  as  originally  intended.     But  they  have 
no  right  to  a  use   which  was  not  in  the  comtemplation  of  the 
complainant   and  of    themselves  when   the   consent   was   first 
given.     Nor  can  they,  by  suffering  others  to  copy  the  manu- 
scripts, give  a  greater  license  than  was  vested  in  themselves. 


270      MOLES  OF  OBTA.N.XG  T.TI.E  TO  PERSONAL  PROPERTY. 

In  England,  if  nn  invention  be  pirated  and  given  to  the  public, 
it  prevents  an  inventor  from  obcaining  a  patent.     But  this  ,s 
not  the  construction  of  our  laws.     If  an  inventor  of  a  mach.ne 
sell  it  or  acquiesce  in  its  public  use  not  vvithn.  the  hm.tat.on  of 
the  two  vears,  he  forfeits  his  rights.     He  must  be  (ul.gent  m 
making  known  and  asserting  his  right  where  it  has  -rrepffously 
got  into  the  possession  of  another,  or  he  abandons  ,t      This 
was  the  settled  rule  before  the  act  of  1839,  ^'hI  >t  would  seem 
thnt  cases  which  do  not  come  within  the  provisions  of  that  act 
must  be  governed  by  the  old  rule.     No  length  of  time    where 
the  invention  does  not  go  into  public  use,  can  mvahdate  the 
n.ht  of  the  inventor.     He   may  take  his  own  tuTie  to  perfect 
hi";  discovery  and  apply  for  a  patent.     And  the  same  prn^cple 
applies  to  the  manuscripts  of  an  author.     If  he  perm,    cop:e 
to  be   taken   for  the   gratitication  of  his  friends,  he  does  not 
authorise  those  friends  to  print  them  for  general  use.     Ih.s  is 
the  author's  right  irom  which  arises  the  high  motive  of  pecuniary 
profit  and  literary  reputation.     When  the  inventor  consents  to 
the  construction  and  use  of  his  machine,  he  yields  the  whole 
vnlue  of  his  invention.     But  an  author's  manuscripts  are  very 
different  from  a  machine.     As  manuscripts  in  modern   times, 
they  are  not  and  can  not  be  of  general  use.     Popular  lee  ures 
may  be  taken  down  verbatim,  and  the  person  taking  them  down 
has  a  right  to  their  use.     He  may,  in  this  way,  perpetuate  the 
instruction   he    receives,  but   he    may   not   print   them      The 
lecturer  designed  to  instruct  his  hearers,  but  not  the  public  at 
laree      Any  use,  therefore,  of  the  lectures  which  should  operate 
iniuri'ouslv  to  the  lecturer  would  be  a  fraud  upon  him  for  which 
the  law  would  give  him  redress.     He  can  not  claim  a  vested 
right  in  the  ideas  he  communicates,  but  the  words  and  sentences 
iirwhich  they  are  clothed  belong  to  him. 

It  is  contended  that  the  manuscripts  are  incomplete,  and  it 
published  in  their  present  state  could  not  be  protected  by  a 
copvri<^ht.  That  an  unfinished  manuscript  or  book  which 
JL  only  a  part  of  the  thing  intended  to  be  written  or  pub- 
lished  can  be  of  no  value,  and  if  printed  no  relief  could  be 
given  as  no  damage  would  be  done.  That  the  parts  of  a 
machine  in  the  process  of  construction,  if  pirated,  would  give 
no  right  to  an  injunction  by  the  inventor.  If  the  manuscript  or 
machine    referred    to    consisted   of    a    mere   fragment    which 


LOPERTY. 

to  the  public, 
But  this  is 
of  a  machine 
;  limitation  of 
be  diligent  in 
iurreptitiously 
Ions  it.     This 
it  would  seem 
)ns  of  that  act 
if  time,  where 
invalidate  the 
me  to  perfect 
same  principle 

permit  copies 
;,  he  does  not 
1  use.  This  is 
ve  of  pecuniary 
tor  consents  to 
elds  the  whole 
cripts  are  very 
modern  times, 
opular  lectures 
;ing  them  down 

perpetuate  the 
tit  them.  The 
)t  the  public  at 
1  should  operate 
n  him  for  which 
:  claim  a  vested 
Is  and  sentences 

omplete,  and  if 
protected  by  a 
or  book   which 
written  or  pub- 
relief  could  be 
the  parts  of    a 
ited,  would  give 
he  manuscript  or 
fragment    which 


FOLSOM    V.    MAUSH. 


S71 


embodied  no  principle  and  pointed  to  no  design,  the  piracy  of 
it  would  afford  no  ground  of  relief.  But  such  is  not  the 
character  of  complainant's  manuscripts.  They  may  not  be 
complete  for  publication.  Some  explanatory  notes  may  be 
wanting  to  assist  the  reader  in  comprehending  the  system. 
This  information  was  communicated  by  lectures  and  for  tlip 
purpose  ot  instruction  in  that  mode,  the  notes  were  unnecessary, 
liut  the  caids  contain  the  frame  work  of  the  system.  The 
substratum  is  there  and  so  exemplified  as  to  show  the  principle 
upon  which  it  is  constructed.  That  it  was  valujible  is  shown 
from  the  fact  of  the  cards  having  been  used  by  the  defendants 
in    teaching  the  system  and  in  publishing  them  as  they  liave 

done. 

The  facts  show  the  piracy  beyond  all  doubt,  and  that  it  was 
done  under  circumstances  which  admit  of  little  or  no  mitigation. 
The  cards,  as  they  well  knew,  had  been  for  a  number  of  years 
and  were  then  being  used  by  the  complainant  to  instruct  pupils. 
They  had  learned  all  they  knew  on  the  subject  from  the  com- 
plainant. They  probably  knew  that  he  intended  to  publish  his 
plan.  But  this  would,  to  some  extent,  at  least  supersede  the 
necessity  of  personal  instruction.  In  disregard  of  these  con- 
siderations and  of  the  obligations  the  defendants  owed  to  the 
complainant,  the  publication  was  made. 

The  court  will  allow  an  injunction  unless  a  satisfactory 
arrangement  shall  be  made  between  the  parties. 

Consult— Pahner  v.  DeWitt,  47  N.  Y.  532,  7  Am.  Rep.  4S1 ;  Keene 
V.  Kimball,  16  Gray,  545,  77  Am.  Dec.  426;  Tompkins  v.  Halleck,  133 
Mass.  32,  43  Am.  Rep.  480;  Crowe  v.  Aiken,  2  Biss.  208;  Gottsberger  v. 
Aldine  Book  Co.,  33  Fed.  Rep.  381. 


§  55.    Same— What  is  an  infringement— Property  in  pri- 
vate letters. 

FOLSOM  V.  MARSH. 

[2  Story,  100.] 

Circuit  Court  of  the  United  States,  District  of 
Massachusetts,  1841. 

Story,  J. This  is  one  of  those  intricate  and  embarrass- 
ing questions,  arising  in  the  administration  of  civil  justice,  in 
which  it  is  not,  from  the  peculiar  nature  and  character  of  the 


372      MODES  OF  OBTAINING  TITLE  TO  I'EHSOXAL  PUOPERTV. 

controversy,  easy  to  arrive  at  any  satisfactory  conclusion,  or  to 
lay  down  any  general  principles  applicable  to  all  cases      1  at- 
ents   and  copyrights   approach,  nearer  than  any  other  clas.  o 
cases  belonging  to  forensic  discussions,  to  what  .nay  be   called 
the  mctaphvsics  of  the  law  where   the  distinctions  ar.,  or,  a 
least    may  be,  very  subtle  and   refined   and  sonietunes   almost 
ev'anescent.  In  many  cases,  indeed,  what  constitutes  an  infringe- 
ment  of  a  patented  invention,  h  sutlkiently  clear  and  obvous 
and  stands  upon  broad  and  general  agreements  and  differences; 
but  in  other  cases  the  lines  approach  very  near  to  each  othe.-, 
,nd  sometimes  become   almost  evanescent,  or  melt  mto  each 
other.     So  in  cases  of  copyright  it  is  often  exceedingly  obvious 
that  the  whole  substance   of   one   work  has  been  copied  from 
another   with   slight   omissions   and    formal    differences   only, 
which  can  be  treated  in  no  other  way  than  as  studied  evasions ; 
whereas,  in   other  cases  the  identity  of  the  two  works  in  sub- 
stance,  and   the  question   of  piracy   often  depend  upon  a  nice 
balance  of  the  comparative  use  made  in  one  of  the  materials  of 
the  other;  the  nature,  extent,  and  value   of  the  materials  thus 
used;  the  objects  of  each  work;  and  the  degree  to  which  each 
write;   may  be  fairly  presumed  to  have  resorted  to  the  same 
common  sources  of  information,  or  to  have  exercised  the  same 
common   diligence   in  the   selection   and    arrangement   of     he 
„,aterials.       Thus,    for   example,    no   one    can    ^^o^^t   that    a 
veviewer  may  fairly  cite  largely  from  the  original  work,  if  his 
design  be  really  and  truly  to  use  the  passages  for  the  purposes 
o    fair  and  reasonable  criticism.     On  the  other  hand,  it  is  clear 
that  if  he  thus  cites  the  most  important  parts  of  the  work  with 
a  view,  not  to  criticise,  but  to  supersede  the  use  of  the  origina 
work  and  substitute  the  review  for  it,  such  a  use  will  be  deemed 
n  law  a  piracy.   A  wide  interval  might  of  course  exist  between 
these  two  extremes,   calling  for   great   caution  and  mvolvmg 
great  difficulty,  where  the  court  is  approaching  the    cbvid.ng 
Lddle  line,  which  separates  the  one  from  the  other,     bo  it  has 
been  decided  that  a  fair  and  bona  fide  abridgment  of   an  or.gi- 
na   work  is  not  a  piracy  of  the  copyright  of  the   author.     See 
Dodsley  v.  Kinnersley,  i  Amb.  403;   mittingham  v^VVooler 
2   Swanst.   428,   430,   43 1^   «"'l  "°^'^-'  ^onson   v.   Walker,    3 
Swnnst   673-679,'6Si.     But,  then,  what  constitutes  a  fair  and 
b  rfide  Ibric^'ment  in  the  sense  of  the  law,  is  one  of  the  most 


[•ERTV. 

ision,  or  to 
ascs.  I'at- 
icr  clasp  of 
y  be   called 

arj,  or,  at 
mes   almost 
an  infrinp^e- 
and  obvious 
differences; 
each  other, 
It  into  each 
gly  obvious 
copied  from 
ences   only, 
:d  evasions ; 
orks  in  sub- 
upon  a  nice 
materials  of 
latcrials  thus 

which  each 
to  the  same 
cd  the  same 
nent   of   the 
loubt   that    a 
,  work,  if  his 
the  purposes 
nd,  it  is  clear 
le  work  with 
f  the  original 
ill  be  deemed 
exist  between 
md  involving 
the    dividing 
er.     So  it  has 
t  of   an  origi- 

author.  See 
im  V.  Wooler, 
V.  Walker,  3 
ites  a  fair  and 
ne  of  the  most 


KOLSOM    V.    MAKSII. 


273 


ditticult  points,  under  particular  circumstances,  which  can 
well  arise  for  judicial  discussion.  It  is  clear  that  a  mere  selec- 
tion or  different  arrangement  of  parts  of  the  original  work  so  as 
to  bring  the  work  into  a  smaller  compass  will  not  be  held  to  be 
such  an  abridgment.  There  must  be  real  substantial  condensa- 
tion of  the  materials,  and  intellectual  labor  and  judgment 
bestowed  thereon ;  and  not  merely  the  facile  use  of  the  scissors, 
or  extracts  of  the  essential  parts,  constituting  the  chief  value  of 
the  original  work.     See  Gyles  v.  Wilcox,  2  Atk.  141. 

In  the  present  case  the  work  alleged  to  be  pirated   is  the 
writings  of   President  Washington,   in  twelve   volumes,  royal 
octavo,  containing  nearly  seven  thousand  pages,  of  which  the 
first  volume  contains  the  life  of  Washington   by   the   lea;ned 
editor,  Mr.  Sparks,  in  respect  to  which  no  piracy  is  asserted  or 
proved.     The   other  eleven  volumes  consist  of   the   letters  o£ 
Washington,  private    and  official,  and  his  messages  and  other 
public  acts,  with  explanatory  notes  and  occasional  illustrations 
by  the  editor.     That  the  original  work  is  of  very  great,  and,  I 
niav  almost  say,  of  inestimable  value,  as  the  repository  of  the 
tlioughts   and   opinions  of  that  great  man,  no  one  pretends  to 
doubt.     The  work  of  the  defendants  is  in  two  volumes,  duo- 
decimo, containing  eight  hundred  and  sixty-six  pages.     It  con- 
sists of  a  life  of  Washington,  written  by  the  learned  defendant, 
the   Rev.  Charles  W.  Upham,  which   is   formed  upon   a  plan 
different  from  that  of  Mr.  Sparks,  anrl  in  which  Washington  is 
made  mainly  to  tell  the  story  of  his  own  life,  by  inserting  there- 
in his  letters,  and  his  messages,  and  other  written  documents, 
with  such  connecting  lines  in  the  narrative  as  may  illustrate  and 
explain  the   times   and   circumstances  and  occasions  of  writing 
them.     Now,  as  I  have  already  said,  there  is  no  complaint  that 
Mr.  Upham  has  taken  his  narrative  part,  substantially,  from  the 
life  by  Mr.  Sparks.     The  gravamen   is,  that  he  has  used  the 
letters  of  Washington,  and  inserted,  verbatim,  copies  thereof 
from  the  collection  of  Mr.  Sparks.     The  master  finds  by  his 
report,  that  the  whole  number  of  pages  in  Mr.  Upham* s  work, 
corresponding  and  identical  with  the  passages  in  Mr.  Sparks' 
work,  are  three  hundred  and  fifty-three  pages  out  of  eight  hun- 
dred and  sixty-six,  a  fraction  more  than  one  third  of  the  two 
volumes  of  the  defendants.     Of  these  three  hundred  and  fifty- 
three  pages,  the  report  finds  that  three  hundred  and  nineteen 
pages  consist  of  letters  of  Washington,  which  have  been  taken 
j8 


374       MODES  OK  OIVIAINING  TITLE  TO  PEUSONAL  I'ROI'EUTY. 

from  Mr.  Sparks'  work,  and  have  never  been publisned  before; 
namely,  Mxty-four  paj,a-s  are  ollkial  letters  and  documents  a.ul 
two  hundred  and  f.fty-Hve  pages  are  private  betters  of  Wash- 
i.Mnon.  The  question,  therefore,  upon  this  admitted  state  of 
the  facts  resolves  itself  into  the  point  whether  such  a  use,  m  the 
defendant's  work,  of  the  letters  of  Washington,  constitutes  a 
niracy  of  the  work  of  Mr.  Sparks.  ,  ,      ,     . 

It  is  objected,  in  the  first  place,  on  beh.ilf  of  the  defendants, 
that  the  letters  of  Washington  are  not,  in  the  sense  of  the  law, 
proper  subjects  of  copyright  for  several  reasons :     i'7r./,  because 
they  are  the  manuscripts  of  a  deceased  person,  not  injured  by 
the  publication  thereof;  sccomU  because  they  are  not  literary 
compositions  and,  therefore,  not  susceptible  of  being  literary 
property,  nor  esteemed  of  value  by  the  author;  tlnrd,  because 
thev  are  in  their  nature  and  character  cither  public  or  official 
letters  or  private  letters  of  business;   and,>//rM,  because  they 
were  designed  by  the  author  for  public  use  and  not  for  copy- 
ric^ht  or  private  property.    Now,  in  relation  to  the  last  objection, 
it"is  most  manifest  that  President  Washington  deemed  them  his 
own  private  property  and  bequeathed  them  to  ^"^  -P^-^'  \»;'-' 
late    Mr.   Justice   Washington,   through   whom   the   late    Mr. 
Chief  Justice  Marshall   and  Mr.  Sparks  acquired    an   interest 
therein ;   and  .  s  appears  from  the  contract  between  these  gentle- 
„,en  annexed  to  the  report,  the  publication  of    these  writings 
,vas  undertaken  by  Mr.  Sparks  as  editor  for  their  joint  benefit, 
and  the  work  itself  has  been    accomplished  at  great  expense 
and  labor,  and  after  great  intellectual  efforts  ^'"^ ---y  P^^^'^"' 
and  comprehensive  researches,  both  at  home  and  abroad.     The 
miblication  of  the  defendants,  therefore,  to  some  extent  must 
be  injurious  to  the  rights  of  property  of  the  representatives  and 
assignees    of    President   Washington.      Indeed,    as   we    shall 
;:s'ently   see,   congress    have    actually    purchased   these    very 
Lters  and  manuscripts,  at  a  great  price,  for  the  benefit  of  the 
nation,  from  their  owner  and  possessor  under  the  will  of  Mr. 
"    ic     Washington,  as   private  and    most  valuable  proper  y^ 
That     President     Washington,      therefore,      intended     them 
exclusively  for  public  use  as  a  donation  to  the  public  or  did  not 
esteem  them  of  value  as  his  own  private  property    appears  to 
"e  to  be  a  proposition  completely  disproved  by  the  evidence 
Unless,    indeed,    there   be   a  most   unequivocal   dedication  of 


)1'ERTY. 

ined  before ; 
umcnts,  and 
rs  of  Wash- 
tted  state  of 
a  use,  in  the 
constitutes  ii 

;  defendants, 
;  of  the  law, 
V/'i/,  because 
3t  injured  by 
;  not  literary 
)eing  literary 
lird,  because 
lie  or  official 
because  they 
not  for  c(jpy- 
last  objection, 
itned  them  his 
i  nephew,  the 
the   late    Mr. 
d    an   interest 
1  these  gentle- 
these  writings 

joint  benefit ; 
great  expense 
d  very  patient 

abroad.     The 
le  extent  must 
jsentatives  and 
,    as   we    shall 
ed    these    very 
;  benefit  of  the 
he  will  of  Mr. 
lable  property, 
ntended     them 
ublic  or  did  no* 
;rty,  appears  to 
y  the  evidence. 
1   dedication  o£ 


FOLSOM    V,    MAIISII. 


3/3 


private  letters  and  papers  by  the  author,  cither  to  the  public  or 
to  some  private  person,  I  iK^ld  that  liic  author  has  a  properly 
therein  and   that  the   copyright  thereof  exclusively   belongr,  to 
him.     Then   as  to  the  supposed  distinction  between  letters  of 
business  or  of  mere  private  or  domestic  characters  and  letters 
which,  from  their  character  and  contents,  are  to  be  treated  as 
literary    compositions,  I  am  not    prepared  to  admit  Us  sound- 
ness or  propriety.     It  is  extremely  dilficult  to  say  what  letters 
are  or  are  not  literary  compositions.     In  one  sense   all  letters 
are  literary,  for  they  consist  of  the  thoughts  and  language  of 
the  writer  reduced  to  written  characters,  and  show  his  style  and 
his  mode  of  constructing  sentences  and  his  habits  of  compo- 
sition.    Many  letters  of  business  also  embrace  critical  remarks 
and  expressions  of  opinion  on  various  subjects,  moral,  religious, 
political,  and  literary.     What  is  to  be  done  in  such  cases  ?     Even 
in  compositions  confessedly  literary  the  author  may  not  intend, 
nay,  often  does  not  intend  them  for  publication ;  and  yet  no  one 
on  that  account  doubts  his  right  of  property  therein,  as  a  sub- 
ject of  value  to  ,,ii..    >lf  and  to  his  posterity.     If  subsequently 
published  by  his  representatives,  would  they  not  have  a  copy- 
right therein.     It  is  highly  prob.ible  that  neither  Lord  Chester- 
field, nor  Lord  Orford,   nor  the  poet  Gray,  nor  Cowper,  nor 
Lady  Russell,  nor  Lady  Montague  ever  intended  their  letu-rs 
for  publication  as  literary  compositions,  although  they  abound 
with  striking  remarks  and  elegant  sketches,  and  sometimes  with 
the  most  profound    as  well   as  affecting  exhibitions  of    close 
reflection,  and   various  knowledge   and  experience,  mixed    up 
with  matters  of  business,  personal  anecdote,  and  family  gossip. 
There  is  no  small  confusion  in  the  books  in  reference  to  the 
question  of  copyright  in  letters.     Some  of  the  dicta  seem  to 
suppose  that  no  copyright  can  exist  except  in  letters  which  are 
professedly  literary;   while  others  again  recognize  a  much  more 
enlarged   and   liberal    doctrine.      See  Gods.   Pat.   (Ed,    1840. 
London)  pp.  327-332  ;   Gee  v.   Pritchard,  2  Swanst.  403,  405, 
436,  437;    Perceval  V.   Phipps,  2  Ves.  &  B.    19,   24,   25,   28. 
Without  attempting  to  reconcile  or  even  to  comment  upon  the 
language  of  the  authorities  on  this  head,  I  wish  to  state   ^vhat 
I  conceive  to  be  the  true  doctrine  upon  the  whole  subject.     In 
the  first  place,  I  hold  that  the  author  of  any  letter  or  letters 
(and  his  representatives),  whether  they  are  literary  compositions 


276      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROrERTV. 

or  familiar  letters  or  letters  of  business,  possess  the  sole  and 
exclusive  copyrignt  therein;  and  that  no  persons   neither  those 
to  whom  they  are  addressed,  nor  other  persons,  have  any  right 
or  authority  to  publish  the  same  upon  their  own  account,  or  for 
their  own  benefit.     But  consistently  with  this  rio^ht  the  persons 
to  whom  they  are  addressed  may  have,  nay,  must,  by  amplica- 
tion, possess  the  right  to  publish  any  letter  or  letters  addressed 
to  them  upon  such  occasions  as  require  or  justify  the  publication 
or  public  use  of  them;  bu.  this  right  is  strictly  limited  to  such 
occasions.      Gee  v.  Pritchard,  2  Swanst.  415.  4'9-      Thus   a 
person  may  justifiably  use   and  publish  in  a  suit  at  law  or  m 
equity,  such  letter  or  letters   as  are  necessary  and  proper   to 
establish  his  right  to  maintain  the  suit  or  defend  the  same.     So 
if  he  be  aspersed  or  misrepresented  by  the  writer  or  accused  of 
improper  conduct,  in  a  public   manner,  he  may  publish  such 
nuts  of  such  letters,  but  no  more,  as  may  be  necessary  to  vin- 
dicate his  character  and  reputation,  or  free  him  from  vijust 
obloquy  and  reproach.     If  he  attempt  to  publish  such  letter  or 
letteA  on  other  occasions,  not  justifiable,  a  court  of  equity  wiU 
nrevent  the  publication  by  an  injunction,  as  a  breach  of  private 
confidence  or  contract,  or  of  the  rights  of  the  author ;  and    a 
fortiori,  if  he  attempt  to  publish  them  for  profit;   for  then  it  is 
not  a  mere  breach  of  confidence  or  contract,  but  it  is  a  violation 
of  the  exclusive  copyright  of  the  writer.     In  short    the  persoi. 
to  whom  letters  are  addressed  has  but  a  limited  right  or  special 
property  (if  I  may  so  call  it)  in   such   letters  as  a  trustee  or 
bailee,  for  particular  purposes,  either  of  information  or  of  pro- 
tectioi  ,  or  of  support  of  his  own  rights  and   character.     The 
lenerai  property   and  the  general  rights   incident  to  property 
belong  to  the  writer,  whether  the  letters  are  literary  compositions 
or  familiar  letters,  or  details   of  facts,  or  letters   of  business 
The  general  property  in  the  manuscripts  remains  in  the  writer 
.nd  his  representatives,  as  well  as  the  general  copyright.     A 
fortiori,  third  persons  standing  in  no  privity  with  either  party 
are  not  entitled  to  publish  them,  to  subserve  their  own  private 
purposes  of    interest  or  curiosity    or  passion.     If   the  case  ot 
Perceval  v.  Phipps,  2  Ves.  &  B.  2t,  2S,  before  the  then  vice- 
-hancellor  (Sir  Thomas  Plumer)  contains  a  different  doctrine 
all  I  can  say  is,  that  I  do  not  accede  to  its  authority ;  and  I  fall 
back   upon  the   more    intelligible  and    reasonable  doctrine   of 


AL  PROPERTY. 

)ssess  the  sole  and 
sons,  neither  those 
3ns,  have  any  right 
3vvn  account,  or  for 
is  right  the  persons 
,  must,  by  implica- 
or  letters  addressed 
stify  the  publication 
ctly  limited  to  such 
415,  419.      Thus   a 

a  suit  at  law  or  in 
sary  and  proper  to 
ifend  the  same.  So 
writer  or  accused  of 
e  may  publish  such 
be  necessary  to  vin- 
ee  him  from  t  njust 
ublish  such  letter  or 

court  of  equity  wiU 
s  a  breach  of  private 
:  the  author;  and,  a 
profit ;  for  then  it  is 
t,  but  it  is  a  violation 

In  short,  the  person 
mited  right  or  special 
;tters  as  a  trustee  or 
^formation  or  of  pro- 
and   character.     The 

incident  to  property 
I  literary  compositions 
r  letters  of  business, 
remains  in  the  writer 
eneral  copyright.  A 
vity  with  either  party 
rve  their  own  private 
sion.     If   the  case  of 

before  the  then  vice- 
s  a  different  doctrine, 
s  authority  ;  and  I  fall 
easonable  doctrine   of 


FOLSOM   V.  MARSH. 


277 


Lord   Hardwicke    in   Pope  v.    Curl,    2    Atk.    342,    and    Lord 
Opsley  in  the  case  of  Thompson  v.  Stanhope,  Amb.  737,  and 
of  Lord  Keeper  Hurley  in  the  case  of  Duke  of  Queensberry  v. 
Sheffeare,  2  Eden,  339  (cited  4  Burrows,  2329),  which  Lord 
Eldon  hp.s  not  scrupled  to  hold  to  be  binding  authorities  upon 
the  point  in  Gee  v.  Pritchard,  2  Swanst.  403,  414,  415,419, 
426,  427.     But  I  do  not  understand  that  Sir  Thomas  Plumer 
did,  in  Percev.il  v.  Phipps,  deny  the  right  of  property  of  the 
writer  in  his  own  letters ;  and  so  he  was  understood  by  Lord 
Eldon  in  Gee  v.  Pritchard  ;  who,  however,  said  that  that  case 
admitted  of  much  remark.     Indeed,  if  the  doctrine  were  other- 
wise, that  no  person  or  his  representatives  could  have  a  copy- 
right in  his  own  private  or  familiar  letters  written  to  friends 
upon   interesting  political  and   other  occasions,  or   containing 
details  of  facts  and  other  occurrences  passing  before  the  writer, 
it  would  operate  as  a  great  discouragement  upon  the  collection 
and  preservation  thereof;   and  the  materials  of  history  would 
become  far  more  scanty  than  they  otherwise  would  be.     What 
descendant   or  representative    of    the   deceased   author  would 
undertake  to  publish,  at  his  own  risk  and  expense,  any  such 
papers;   and  what  editor  would  be  willing  to  employ  his  own 
learning  and  judgment  and  researches  in  illustrating  such  works, 
if    the  moment  they  were   successful   and  possessed   the  sub- 
stantial patronage  of  the  public,  a  rival  bookseller  might  repub- 
lish them,  either  in  the  same  or  in  a   cheaper  form,  and  thus 
either  share  with  him  or  take  from  him  the  whole  profits?     It 
is  the  supposed  exclusive  copyright  in  such  writings  which  now 
encourages  their  publication  thereof,  from  time  to  time,  after 
the  author  has  passed  to  the  grave.     To  this  we  owe  not  merely 
the  publication  of  the  writings  of  Washington,  but  of  Frank- 
lin and  Jay  and  Jefferson  and  Madison  and  other  distinguished 
statesmen  of  our  own  country.     It  appears  to  me  that  the  copy- 
right act  of  1S31,  c.  16,  sec.  9  (4  Stat.  436)  fully  recognizes  the 
doctrine  for  which  I  contend.     It  gives,  by  implication,  to  the 
author  or  legal  proprietor  of  any  manuscript  whatever,  the  sole 
right  to  print  and  publish  the  same,  and  expressly  authorizes 
the  courts  of  equity  of  the  United  States  to  grant  injunctions 
to  restrain  the  publication  thereof  by  any   person  or  persons 
without  his  consent. 


RSI 


27S       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROI'ERTV. 

In  respect  to  official  letters,  addressed  to  the  government,  or 
any  of  its  departments,  by  public  officers,  so  tar  as  the  right  of 
government  extends  from  principles  of  public  policy,  to  with- 
hold  them  from   publication  or  to   give  them  publicity,  there 
may   be    a   just   ground    of   distinction.     It  may    be   doubtful 
whether  any  public  officer  is  at  liberty  to  publish  them,  at  least 
in  the  same  age,  when  secrecy  may  be  required  by  the  public 
exigencies,  without  the  sanction  of   the  government.     On  the 
other  hand,  from  the  nature  of  the  public  service  or  the  charac- 
ter of   the  documents,  embracing  historical,  military,  or  diplo- 
matic information,  it  may  be  the  right  and  even  the  duty  of  the 
government  to  give  them  publicity,  even  against  t'le  will  of  the 
writers.     But  this  is  an  exception  in  favor  of  the  government, 
and  stands  upon   principles  allied  to  or  nearly  similar  to  the 
rights  of  private  individuals  to  whom  letters  are  addressed  by 
their  agents  to  use  them  and  publish  them  upon  fit  and  justifi- 
able occ  sions.     But  assuming  the  right  of  the  government  to 
publish  such  official  letters  and  papers  under  its  own  sanction 
and  for  public  purposes,  I  am  not  prepared  to  admit  that  any 
private   persons   have   a  right  to  publish  the  same  letters  and 
papers,  without  the  sanction  of  the  government,  tor  their  own 
pnvate  profit  and  advantage.     Recently  the  Duke  of  Welling- 
ton's dispatches  have,  I  believe,  been  published  by  an  able 
editor,  with  the  consent  of  the  noble  duke  and  under  the  sanc- 
tion of  the  government.     It  would  be  a  strange  thing  to  say. 
that  a   compilation  involving  so  much  expense  and  so    much 
labor  to  the  editor  in  collecting  and  arranging  the   materials, 
might  be  pirated  and   republished  by  another  bookseller,  per- 
haps to  the  ruin  of  the  original  publisher  and  editor.     Before 
my  mind  arrives  at  such  a  conclusion,  I   must  have  clear  and 
positive  lights  to  guide  my  judgment  or  to  bind  me  in  point  of 
authority.     However,  it    is  not   necessary   in   this  case  to  dis- 
pose of  this  point,  because  of  the  letters  and   documents  pub- 
lished by  the  defendants,  not  more  than  one  fifth  part  are  of  an 
official  character. 

Another  and  distinct  objection  urged  on  behalf  of  the  defend- 
ants is  that  congress  have  purchased  the  manuscripts  of  these 
letters  and  documents  and  they  have  become  public  property, 
and  may  be  published  by  anyone.  An  answer  in  part  has  been 
already  given  to  this  objection.     Congress  have,  indeed,  author- 


FOLSOM    V. MARSH. 


79 


lOPERTV. 

ivernment,  or 
s  the  right  of 
licy,  to  with- 
iblicity,  there 

be  doubtful 
them,  at  least 
jy  the  public 
ent.  On  the 
or  the  charac- 
tary,  or  diplo- 
he  duty  of  the 
he  will  of  the 
I  government, 

similar  to  the 

addressed  by 
fit  and  justifi- 
government  to 

own  sanction 
admit  that  any 
me  letters  and 
,  tor  their  own 
<e  of  VVelling- 
ed  by  an  able 
inder  the  sanc- 
e  thing  to  say. 

and  so    much 

the  materials, 
)ookseller,  per- 
editor.  Before 
have  clear  and 

me  in  point  of 
(lis  case  to  dis- 
ocuments  pub- 
li  part  are  of  an 

If  of  the  def end- 
scripts  of  these 
)ublic  property, 
in  part  has  been 
,  indeed,  author- 


5zed  the  purchase   of  these  manuscripts  from  the  owner   and 
possessor    thereof    and    paid    the    liberal    price    of    $25,000 
hcrefor;  and  they  have  thus  become  national  property.      .5ut 
it  is  an  entirely  inadmissible  conclusion  that,  therefore,  every 
private  person  has  a  right  to  use  them   and   publish   them      I 
might  be   contended   with   as  much  force  and  correctness    hat 
every  private   person  had    an    equal    right   to    use    any    other 
national  property  at  his  pleasure,  such  as  the  arms,  ammunition 
the  ships    or  the  custom  houses,  belonging  to  the  government 
But  a  reason  which  is  entirely  conclusive  upon  this  pouit  ,s  that 
the  government  purchased  the  manuscripts  subject  to  the  copy- 
right  already    acquired   by   the   plaintiffs    in   the    pubhcat.on 
thereof      The  vendor  took  them  subject  to  that  copyright,  and 
could  convey  no  title   which  he  did   not  himself    possess,  or 
beyond  what  he  possessed.     Nor  is  there  any  pretense  to  say 
that  he  either  did  convey,  pr  intended  to  convey  to  the  govern- 
ment, the  property  in  these  manuscripts,  except  subject  to  the 

copvright  already  acquired.  ^      ,  c     a     ,    u.\  n 

The  next  and  leading  objection  is  that  the  defendants  had   a 
right  to  abridge,  and  select  and  use  the  materials  which  they 
have  taken  for  their  work,  which  though  it  embraces  the  number 
of  letters  above  stated,  is     .1  original  and  new  work,  and  that 
it  constitutes  in  no  just  sense  a  piracy  of  the  work  of  the  plain- 
tiffs      This,  in  truth,  is  the  real  hinge  of  the  whole  controversy 
and  involves Hhe  entire  merits  of  the  suit.     It  is  certainly  true 
that  the  defendant's  work  can   not  properly  be  treated  as  an 
abridgment  of  that  of  the   plaintiffs;  neither  is  it  strictly  and 
wholly  a  mere  compilation  from  the  latter.     So  far  as  the  nar- 
rative  goes  it  is  either  original  or  derived,  at  least  as  far  as  the 
matter  has  been  brought  before  the  court,  from  common  sources 
of   information,    open   to  all  authors.     It  is  not   even   of  the 
nature  of  a  collection  of  beauties  of  an  author  ;   for  it  does  not 
profess  to  give  fugitive  extracts  or-briUiant  passages  from  par- 
ticular letters.     It  is  a  selection  of  the  entire  contents  of  partic- 
ular letters  from  the  whole  collection  or  mass  ot  letters  o   the 
work  of  the  plaintiffs.     From  the  known  tas.e  and  ability  of 
Mr.  Upham   it  can   not  be   doubted   that  these  letters  are  the 
most  instructive,  useful,   and  interesting  to  be   found  mthat 
lar<^e  collection.     The  question,  then,  is  whether  this  is  a  justi- 
fiable use  of  the  original  materials  such  as  the  law  recogmzes 


38o      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

as  no  infringement  of  the  copyright  of  the  plaintiffs.     It  is  said 
that  the  defendant  has  selected  only  snch  materials  as  suited 
his  own  limited   purpose  as  a  biographer.     That  is  doubtless 
true ;  and  he  has  produced  an  exceedingly  valuable  book.     But 
that  is  no  answer  to  the  difficulty.     It  is  certainly  not  necessary 
to  constitute  an  invasion  of  copyright  that  the  whole  of  a  work 
should  be   copied,  or  even  a  large  portion  of  it,  in  form  or  ni 
substance.     If  so  much  is  taken  that  the  value  of  the  original  is 
sensibly  diminished  or  the  labors  of  the  original  author  are  sul> 
stantially  to  an  injurious  extent  appropriated  by  another,  that  is 
sufficient,  in  point  of  law,  to  constitute  a  piracy  pro  tanto.    The 
entirety  of  the  copyright  is  the   property  of  the  author;   and  it 
is  no  defense  that  another  person  has  appropriated  a  part  and 
not  the   whole  of   any  property.     Neither  does  it  necessarily 
depend  upon  the  quantity  taken  whether  it  is   an   infringement 
of  the  copyright  or  not.     It  is  often  affected  by  other  consider- 
ations, the  value  of  the  materials  taken,  and  the  importance  of 
it  to  the   sale  of   the  original  work.     Lord   Cottenham  in  the 
recent  cases  of  Bramwell  v.  Ilalcomb,  3  Mylne  &  C.  737,  73S, 
and  Saunders  v.  Smith,  Id.   711,   736,   737^  adverting  to  this 
point,  said:    "When  it  comes  to  a  question  of  quantity  it  must 
be  very  vague.     One   writer  might   take  all  the  vital  part  of 
another's  book,  though  it  might  be  but  a  small  proportion  of  the 
book,  in  quantity.   It  is  not  only  quantity  but  value  that  is  always 
looked  to.     It  is  useless  to  refer  to  any  particular  cases  as  to 
quantity."     In  short,  we  must  often,  in  deciding  questions  of 
this  sort,  look  to  the  nature  and  objects  of  the  selections  made, 
the  quantity  and  value  of  the  mrterials  used,  and  the  degree  in 
which  the  use  may  prejudice  the  sale,  or  diminish  the  profits, 
or  supersede  the   objects  of  the  original  work.     Many  mixed 
ingredients  enter  into  the  discussion  of  such  questions.     In  some 
cases   a  considerable  portion  of  the  materials  of  the   original 
work  may  be   fused,  if  I   may  use   such   an   expression,   into 
another  vvork,  so  as  to  be  undistinguishable  in  the  mass  of  the 
latter,  which   has  other  professed  and  obvious  objects,  and  can 
not  fairly  be  treated  as  a  piracy;  or  they  may  be  inserted  as  a 
sort  of  distinct  and  mosaic  work  into  the  general  texture  of  the 
second  work,  and  constitute  the  peculiar  excellence  thereof,  and 
t'.ien  it  may  be  a  clear  piracy.     If  a  person  should,  under  color 
of  publishing  "Elegant  Extracts"   of  poetry,  include  all  the 


ROPERTY. 

is.  It  is  said 
rials  as  suited 
it  is  doubtless 
le  book.     But 

not  necessary 
lole  of  a  work 

in  form  or  in 
the  original  is 
uthor  are  sul)- 
nother,  that  is 
ro  tanto.  The 
author;  and  it 
;d  a  part  and 

it  necessarily 
I  infringement 
jther  consider- 

importance  of 
ttenham  in  the 
&  C.  737,  73S, 
verting  to  this 
uantity  it  must 
e  vital  part  of 
oportion  of  the 
t  that  is  always 
Lilar  cases  as  to 
ig  questions  of 
elections  made, 
J  the  degree  in 
lish  the  profits, 
Many  mixed 
:ions.     In  some 
of  the    original 
ixpression,    into 
the  mass  of  the 
bjects,  and  can 
De  inserted  as  a 
1  texture  of  the 
nee  thereof,  and 
.lid,  under  color 

include  all  the 


it 


FOLSOM    V.   MAUSH. 


!Sl 


best  pieces  at  large  of  a  favorite  poet,  whose  volume  was 
secured  by  a  copyright,  it  would  be  ditticult  to  say  why  it  was 
not  an  invasion  of  that  right,  since  it  might  constitute  the  entire 
value  of  the  volume. 

The  case  of  Mawman  v.  Legg,  2  Russ.  3S5,  is  to  this  pur- 
pose.    There  was  no  pretense  in  that  case  that  all  the  articles 
of  the  encyclopedia  of  the  plaintiffs  had  been  copied  into  that 
of  the  defendants ;  but  large  portions  of  the  materials  of  the 
plaintiffs'    work   had   been   copied.     Lord    Eldon,    upon   that 
occasion,  held  that  there  might  be  a  piracy  of  part  of  a  work 
which  would  entitle  the  plaintiffs  to  a  full  remedy  and  relief  in 
equity.     In  prior  cases  he  had  affirmed  the  like  doctrine.     In 
Wilkins  V.  Aiken,  17  Ves.  422,  424,  he  said:     "There  is  no 
doubt  that  a  man  can  not,  under  the   pretense  of  quotation, 
publish  either  the  whole  or  a  part  of  another's  book,  though 
he    may  use,   what   in    all  cases  it   is   difficult  to    define,  fair 
quotation."     In  Roworth  v.  Wilkes,  i  Camp.  94,  Lord  Ellen- 
borough   said:      "A   review   will    not,  in  general,  serve  as  a 
substitute  for  the  book  reviewed  ;   and  even  then  if  so  much  is 
extracted  that  it  communicates  the  same  knowledge  with  the 
original  work,  it  is  an  actionable  violation  of  literary  property. 
The  intention  to  pirate  is  not  necessary  in  an  action  of  this  sort; 
it  is  enough  that  the  publication  complained  of  is,  in  substance, 
a  copy  whereby  a  work  vested  in  another  is  prejudiced.     A 
compilation  of  this  kind  (an  encyclopedia)  may  differ  from  a 
treatise  published  by   itself,  but  there   must  be  certain  limits 
fixed  to  its  transcripts ;   it  must  not  be  allowed  to  sweep  up  aU 
modern  works,  or  an  encyclopedia  would  be  a  recipe  for  com- 
pletely breaking  down  literary  property."     The  vice  chancellor. 
Sir  L.   Shadwell,  in  Sweet  v.  Shaw,    i   Jur.    (London)  212, 
3  Jur.  217,   referring  to  the  remarks  of  Lord  Ellenborough, 
cited  by  counsel,  said:      "That  does  not  mean  a  substitute  for 
the  whole  work.     From  what  you   state,   suppose   a  book   to 
contain  one  hundred  articles  and  ninety-nine  were  taken,  still 
it   would   not   be    a    substitute."     And    in   this  very   case  he 
granted  an  injunction,  being  of  opinion  that  there  was  prima 
facie,  at  law,  an  invasion  of  the  plaintiffs'  right,  not  only  an 
injury,  but  also  a  damage  to  the  plaintiffs  in  copying  from 
several  volumes  of  reports  published  by  the  plaintiffs,  although 
eleven   only    had  been   copied    verbatim,   but   a    considerable 


3S.       MODES  OF  OBTAINING   TITLE  TO  PERSONAL  PROPERTY. 

number  of  what  were  called  "abrklged  cases"  were,  in  truth, 
conies  of  the  plaintiffs'  volumes,  with  little  or  tnflms  altera- 
tions      It  is  manifest  also  from  what  fell  from  Lord  Chancellor 
Cottenham,  ir.  Saunders  v.  Smith,  3  Myl-   &  C     7x1,  tnat  he 
entertained  no  doubt  (although  he  did  not  deode  the  ponU) 
that  there  might  be  a  violation  of  the  copyr.ght  ot  volumes  of 
reports  by  copying  verbatim  a  part  only  of  the  cases  reported. 
Much  nit,  in  such  cases,  depend  upon  the  nature  of  the  new 
work,  the  value  and   extent  of  the  copies,  and  the  degi^e  m 
which  the  original  authors  may  be  injured  thereby.     In  Lewis 
Z    Fullarton,    2  Jnr.   (London)   127,   3   J"-  669..^  Beav    6 
Lord  Langdale,  in  the  case  of  a  typographical  dictionary,  held 
ih-M  lugeW   copying  from   a  work  in  another  book  having  a 
^millr  object  wL  I  violation  of  that  copyright    although  the 
same    information   might   have    been    (but   in   fact  was    not) 
obtained  from  common  sources  open  to  all  persons.     On   hat 
occasion    he    said:      -None    are   entitled    to    save   themselves 
trouble    and   expense    by    availing   themselves    for   their   own 
profit,  of  other  men's  works,  still  entitled  to  the  protection  of 
convrighf,"  and  accordingly  in  that  case  he  granted  an  inj,  ic- 
ion  al  to  the  parts  pirated,  although  it  was  admiUed  or    all 
hands,  that  there  was  much  which  was  original  m  the  new  work. 
tL  present  case  I  have  no  doubt,  whatever,  that  there  is 
.n  invasion  of  the  plaintiffs'  copyright ;  I  do  not  say  designedly 
::  from  bad  intentions;  on  the  contrary  I  entertain  no  doubt 
that  it  was  deemed  a  perfectly  lawful  and  justifiable  use  of  the 
Plaintiffs'  work.     But  if  the  defendants  may  take  three  hundred 
and   nineteen  letters  included  in  the  plaintiffs'   copyright  and 
exclusively  belonging  to  them,  there  is  no  reason  why  another 
bookseller  may  not  take  other  five  hundred  ^^f -'  ^^  «  ^•^^'^''. 
one   thousand    letters    and  so   on,  and   thereby  the  plaintiffs 
convright  be  totally  destroyed.     Besides,  every  one  must  see 
thlt  the  work  of  the  defendants  is  mainly  founded  upon  these 
leiters,  constituting  more  than    one   third   of    their  work  and 
imnar  inc.  to  it  its  greatest,  nay,  its  essential  value.     Without 
those    leuers   in   its   present   form   the   work  must  fall  to  the 
eround      It  is  not  a  case  where  abbreviated  or  select  passages 
are  taken   from   particular  letters;    but  the  entire    letters   are 
taken  and  those  of  the  most  interest  and  value  to  the  public, 
Is  illustrating  the  life,  the  acts,  and  the  character  of  Washing- 


lOPERTY. 

ere,  in  truth, 
rifling  altera- 
id  Chancellor 
.711, that  he 
de  the  pohit) 
)f  volumes  of 
ises  reported, 
re  of  the  new 
the  degree  in 
oy.     In  Lewis 
9,   3  Beav.  6, 
ictionary,  held 
)ook  having  a 
,  although  the 
'act  was    not) 
sons.     On  that 
ive   themselves 
for   their   own 
e  protection  of 
nted  an  inji  ic- 
dmilted  or    all 
1  the  new  work, 
n-,  that  there  is 

say  designedly 
;rtain  no  doubt 
iable  use  of  the 
e  three  hundred 

copyright  and 
an  why  another 
;rs,  and  a  third, 
f  the  plaintiffs' 
y  one  must  see 
ded  upon  these 
their  work  and 
^alue.     Without 
nust  fall  to  the 
•  select  passages 
itire    letters   are 
le  to  the  public, 
ter  of  Washing- 


:'OLSOM    V.   MAUSII. 


2S3 


ton.  It  seems  to  me,  therefore,  that  it  is  a  clear  invasion  of 
the  rl"ht  of  property  of  the  plaintiffs,  if  the  copying  of  parts 
of  a  work,  not  constituting  a  major  part,  can  ever  be  a  v.ola. 
lion  thereof;  as  upon  principle  and  authority  I  have  no  doubt 
it  may  be.  If  it  had  been  the  case  of  a  fan-  and  bona  hde 
abridament  of  the  work  of  the  plaintiffs,  it  might  have 
admitted  of  a  very  different  consideration. 

I  have  come  to  this  conclusion,  not  without  some  regret,  that 
it  may  interfere  in  some  measure  with  the  meritorious  labors 
of    the   defendants   in  their    great  undertaking  of    a  series    of 
works  adapted  to  school  libraries.      But  a  judge  is  entitled  in 
this  case,  as  in  others,  only  to  know  and  to  act  upon  his  duty. 
I  hope,  however,  that  some  means  may  be  found  to  pioduce  an 
amicable  settlement  of  this  unhappy  controversy.     The  report 
of  the  master  must  stand  confirmed  and  a  perpetual  injunction 
be  awarded  restraining  the  defendants,  their   agents,  servants, 
and  salesmen  from  farther  printing,  publishing,  selling,  or  dis- 
posing   of    any  copy   or   copies  of    the   vvoi-k  complained    of: 
the  "Life  of  Washington,"  by  the  Rev.  Charles  W    Lpham 
containing   any  of   the   three  hundred   and  nineteen  letters  of 
Washington,  stated  in  the  report  of  the  master  and  never  before 
published;    and   that  it   be    referred   to  a  master   to    take   an 
account  of  the  profits  made  by  the  defendants  in  the  premises; 
with  leave  for  either  paity  to  apply  to   the  court   for  farther 
directions. 

Consult-As  to  property  in  private  letters,  Denis  v.  Leclerc.  i  Mart. 
(L)""  5  A-.  Dec.  7'.;  Hoyt  v.  Mackenzie,  3  Barb.  Ch.  350,  49  A-- 
Dec  178  Grigsby  v.  Breckenridge,  2  Bush,  480,  92  An,.  Dec.  507;  Rice 
V  Will  ams,  3'  Fed.  Rep.  437-  As  to  infringement,  Story  v.  Holcombe, 
4  McLean/ ie;  List  Pub.  Co.  v.  Kellar,  30  Fed.  ^^P"  773;  M.- - 
Callaghan,  20  Fed.  Rep.  441,  "8  U.  S.  617;  Lawrence  v^  ^---' ^}^'f^ 
,;  Emerson   v.    Davis,   3  Story,   768;    Gilmore   v.   Anderson,  38  Fed. 

Rep.  846. 


2S4        MODES  OF  OnTAINIXG  TITLE  TO  PEIISONAL  PROPERTY. 

§  56.    Trade-marks— Consist  of  what. 

FILLEY  V.  FASSETT. 

[44 Mo.  168;  too  Am.  Dec.  275.] 

Supreme  Court  of  Missouri^  i86g. 

Currier,  J. — In  1S51  the  plaintiff  employed  N.  S.  Vedder, 
an    extensive    stove-pattern   maker  of    Troy,    New    York,    to 
design  and   construct  for  him  a  set  or  series  of  cooking  stove 
patterns.     The  patterns  were  made  as  ordered,  and  in  a  form 
which  resulted  in  the  production  of  a  cooking  stove  of  a  new 
and  improved  interior  arrangement  and  construction,  for  which 
Vedder   obtained    letters   patent    which    he    assigned    to    the 
plaintiff.     The  plaintiff  originated  and  applied  to  the  stove  the 
name  "Charter  Oak,"  which  was  so  formed  upon  the  patterns 
as  to  produce  the  name  upon  the  manufactured  article  in  com- 
bination with  a  sprig  of   oak  leaves.     The   name  and  device 
was  employed  to  distinguish  and  designate  cooking  stoves  of 
the  plaintiff's  manufacture.     The  manufacture  and  sale  com- 
menced   the   following  year   and   has  been   followed  up   con- 
tinuously ever  since,  the  sales  from   1S53  to   1S67,  both  years 
inclusive,  amounting  to  1 19,226.     These  stoves  were  distributed 
broadl>  through  the  western  and  southern  country,  and  appear 
to  have  been  highly  popular  and  successful. 

The  testimony  shows  that  stoves  are  usually  known  in  the 
trade  by  their  distinctive  names  and  designations,  such  as 
"Excelsior,"  "Climax,"  "Empire,"  "Charter  Oak,"  etc.; 
and  that  they  are  advertised  and  bought  and  sold  by  such  names 
and  designations ;  that  when  a  stove  is  favorably  received  and 
acquires  popularity  in  the  market,  and  with  those  who  use  it, 
the  peculiar  name  by  which  it  is  known  and  distinguished 
becomes  a  matter  of  importance  to  the  manufacturer  and  of 
great  value  to  him  in  the  prosecution  of  his  business.  The 
extent  of  the  plaintiff's  sales  of  his  "Charter  Oak"  cooking 
stove  indicates  its  reputation  and  popularity  and  the  consequent 
value  to  him  by  which  it  was  known. 

But  the  answer  denies  that  the  plaintiff  first  appropriated 
and  used  that  name  in  such  connection  as  indicating  the  source 
and  origin   of    the     article    to  which    it    was    applied,  denies 


ROPERTY. 


FILLEY    V.    FASSETT. 


2S5 


^J.  S.  Veddcr, 
ew   York,    to 
cooking  stove 
ami  in  a  form 
itove  of  a  new 
;ion,  for  which 
signed    to    the 
>  the  stove  the 
jn  the  patterns 
article  in  com- 
ne  and  device 
king  stoves  of 
and  sale  com- 
owed  up   con- 
167,  both  years 
vere  distributed 
ry,  and  appear 

known  in  the 
itions,  such  as 
r   Oak,"   etc.; 

by  such  names 
ly  received  and 
ose  who  use  it, 
d  distinguished 
facturer  and  of 
business.     The 

Oak"   cooking 

the  consequent 

St   appropriated 

iiting  the  source 

applied,  denies 


that  his  use  of  it  has  been  either  exclusive  or  unuitcrruptcdly 
continuous,   and  avers   that   the   contrary   of    all    this  is    true. 
Upon   these  issues  a  large  mass  of  testimony  was  taken  trom 
which   the    following   facts    are  deduced:      First.      Ihat  the 
plaintiff's  appropriation  of  the  name  "Charter  Oak,"  as  already 
detailed,  was  prior  in  point  of  time  to  any  similar  use  of  that 
name  by  any  other  parties.     The  testimony  is  clear  and  entirely 
satisfactory   on   this  point.      Second.      That,   notwithstanding 
such  appropriation  by  the  plaintiff,  different  manufacturers  in 
Cincinnati  and  in  that  region  at  different  times  subsequently  to 
18^3,  applied  the  same  name  to  cooking  stoves  of  their  manu- 
facture, but  without  the  consent  of  the  plaintiff  in  any  instance 
and  without  h)'.  knowledge  except  in  two  instances.     The  hrst 
of  these  two  occurred  in  1S54  and  was  at  once  checked  by  the 
plaintiff  and    abandoned  by   the   Cincinnati  manufacturer,  on 
being  apprised  of  the  plaintiffs  rights.     The  other  is  that  of 
the   manufacturer  of  the   stoves,   the  sale  of    which,  with   the 
plaintiff's    alleged    trade-mark    upon    them,    is   sought   to    be 
enjoined  in  this  suit;   and  the  suit  was  commenced  immediately 
after  the  facts  came  to  the  knowledge  of  the  plaintiff.      T/iu-d. 
That  J     S    &  M.  Peckham,   of  Utica,  Oneida  county,   New 
York,  manufactured  in  Utica  a  "Charter  Oak"  cooking  stove 
from    1852   to  1857,  and  then  abandoned   it,  and  never  after 
resumed  the  manufacture  of  that  particular  stove.     The  Peck- 
hams  purchased    their   patterns  for   this  stove   of    said  N.   b. 
Veddcr,  Filley  consenting  to  the  sale  on  condition  that  certain 
alterations  were  first  made  in  the  patterns.     This  transaction 
does  not  appear  to  have  included  specifically  the  right  to   use 
the  plaintiff's  trade-mark,  nor  does  it  appear  that  FiUey   was 
ever  made  aware  that   the  purchasers  in   fact  used   't.      ihe 
desi-n  of  the  stove  was  patented  and  the  transactions  with  the 
Peclthams    involved  the   granting  to  them  the  right  to  manu- 
facture,  in  Oneida  county,  its  patented  features;  that  with  the 
right  to  sell   in  a  defined   territory  would   seem  to  have  con- 
stituted the  inducement  to  the  purchase  of  these  patterns  rather 
than   others.     The    particular   name    which    the   plaintiff   had 
originated  for  the  stove,  which  he  proposed  to  make,  does  not 
appear  to  have  been  mentioned  in  the   negotiations  with  the 
reckhams,  or  to  have   been  in  the  minds  of  the   parties.     It 
ought  not,  therefore,  to  be  inferred  from  the  mere  permission 


386      MODES  OK  OnTAlNMNG  TITLE  TO  PERSONAL  rnOI'EKTY. 

granted  to  Vcdiler  to  sell  out  the  use  of  his  trade-mark,  par- 
ticularly ilia  contest  with  third  parties;  the  I'cckhanis  them- 
selves disavowing  all  right,  claim,  or  interest  in  the  trade- nark, 
either  as  originators  or  purchasers.  Fourth.  That  the  plain- 
tiff's use  of  the  trade-mark  claimed  by  him  has  been  continuous 
and  uninterrupted  since  its  Fust  adoption  by  him  to  the  present 
time. 

The  fact  that  the  parties  in  Cincinnati  or  elsewhere  manu- 
factured "Charter  Oak"  stoves  and  sent  them  into  the  market 
to  compete  with  the  plaintiff's  manufactures  in  no  way  aids  the 
defense,  unless  it  appears  that  the  plaintiff  assented  to  or 
acquiesced  in  such  infringements  upon  his  rights;  and  as  already 
indicated,  there  is  nothing  in  the  case  to  establish  a  dedication 
or  abandonment  to  the  public  on  the  part  of  the  plaintiff,  of 
his  supposed  rights  of  property  in  the  alleged  trade-mark. 
There  is  no  testimony  having  that  tendency,  except  the  trans- 
action with  the  Peckhams  and  that  is  insufficient.  In  Gillott  v. 
Esterbrook,  47  Barb.  455,  it  appeared  that  an  imitation  of  the 
plaintiff's  mark  had  been  in  use  for  many  years,  and  that  for 
twenty  years  he  had  issued  printed  "cautions"  to  the  public  on 
the  subject,  implying  knowledge  on  his  part  of  such  use,  but 
that  was  held  no  acquiescence,  although  the  plaintiff  had  neg- 
lected to  institute  prosecutions. 

The  depredations  of  others  upon  plaintiff's  rights  furnish  no 
excuse  to  the  defendants  for  similar  acts  on  their  part.  It  is 
rather  an  aggravation  to  the  plaintiff  that  others  have  also 
injured  him,  and  courts  have  not  shown  any  disposition  to 
encourage  that  line  of  defense.  Woodbury,  J.,  in  Taylor  v. 
Carpenter,  3  Wood.  &  M.  S,  held  this  language:  "There  is 
something  abhorrent  in  allowing  such  a  defense  to  a  wrong 
which  consists  in  counterfeiting  another's  marks  or  stamps, 
defrauding  others  of  what  had  been  gained  by  their  industry 
and  skill  and  robbing  them  of  the  fruit  of  their  good  name, 
merely  because  they  have  shown  forbearance  and  kindness." 
See  observations  of  Story,  J.,  same  case,  3  Story,  464. 

After  this  suit  was  commenced  Rosenbaum  &  Co.,  who  seem 
to  be  real  parties  defending  against  the  action,  made  an  attempt 
to  appropriate  the  disputed  trade-mark  to  their  own  use,  in  due 
form  of  law,  by  filing  in  the  office  of  recorder  of  deeds  in  the 
county  of  St.  Louis,  a  written  claim  thereto  under  the  act  of 
March,  1866.     Gen.  Stats.   1S65,  p.  912.     A  certified  copy  of 


^OI'EUTY. 

Llo-niark,  par- 
;khnnis  tliein- 
le  trade-  nark, 
hat  the  phiin- 
en  continuous 
to  the  present 

;\vhcre  manu- 
to  the  market 
)  way  aids  the 
isented  to  or 
and  as  already 
h  a  dedication 
le  plaintiff,  of 
\  trade-mark. 
:ept  the  trans- 
In  Gillott  V. 
nitation  of  the 
3,  and  that  for 
I  the  public  on 
such  use,  but 
intiff  had  neg- 

hts  furnish  no 
ir  part.  It  is 
lers  have  also 
disposition  to 
,  in  Taylor  v. 
i:  "There  is 
se  to  a  wrong 
4S  or  stamps, 
their  industry 
ir  good  name, 
ind  kindness." 

y,  464. 

Co.,  who  seem 
ade  an  attempt 
\\n  use,  in  due 
)f  deeds  in  the 
ider  the  act  of 
;rtified  copy  of 


FII.I.KY    V.    lASSKTT. 


2S7 


the  paper  so  filed,  declaring  that  said  Rosenhaum  &  Co.  had 
adopted  "Charter  Oak"  as  their  tra.le-mark  for  stoves  manu- 
factured l.v  them,  was  given  in  evidence  and  relied  upon  as 
showing  their  title  to  the  trade-mark  against  Fillcy,  who  had 
never  filed  any  such  document.  If  this  proceeding  can  be 
m-ulc  available  for  the  purpose  intended,  it  may  be  regarded  as 
an  entirely  new  and  improved  method  of  disposing  of  trade- 
mark cases,  and  of  appropriating  the  property  of  others,  the 
subject  of  such  suits,  without  risk  or  inconvenience  and  at  very 

slight  cost.  ,       ,  .  .      1  J 

A  glance  at  the  statute,  however,  shows  that  it  wr.s  mtended 
for  no  such  purpose.     It  was  not  designed  in  the  slig'.test  par- 
ticular to  weaken  or  abridge  any  existing  rights,   m    any   future 
right  to  a   trade-mark   which  might  be   acquired  m   the  usual 
way  or  to  legalize   in   any  form  or  measure   piracy   m  trade- 
marks.    Property  in  a  trade-mark  is  acquired  at  common  law 
only  by  appropriation  and  use,  and  then  only  of  such  names, 
words,  and  devices  as  may  be  held  to  be  adapted  to  point  out 
the  true  source  and  origin  of  the  goods  to  which  such  marks 
are   applied.     The   statute   widens  the  range  of  selection  and 
authorizes  the  mechanic  or  manufacturer  to  adopt  any  name  or 
device  he  pleases  and  to  foreclose  any   controversy  on  the  sub- 
ject by  writing  out  and  filing  with  the  recorder,  as  the  law  pro- 
vides, an   accurate  description   of  the  name,  device,  etc.,  that 
may  have  been  chosen.     But  such  paper  is  to  be  filed  in  the 
county   where    the    goods,    etc.,    are    to  be  manufactured  or 
prepared.     It  is  not  perceived  how  this  can  be  made  to  apply 
to   Rosenbaum  &   Co.'s  stoves,   which    are    manufactured    in 
another  stUe.     The   statute   has  no  application  to  the  facts  of 
the  present  litigation.     Nor  will  any  fair  construction  of  it  war- 
rant the  appropriation  by  one  party  of  an  existing  trade-mark, 
the  title  and  ownership  of  which  is  in  another  party. 

But  it  is  objected  that  the  words  "Charter  Oak,"  with  the 
accompanying  device,  lack  the  requisite  ingredients  or  charac- 
teristics of  a  trade-mark,  and,  therefore,  it  is  insisted  that  he 
plaintiff  could  acquire  no  exclusive  right  to  their  use  for  that 
purpose  The  books  are  full  of  authorities  establishing  the 
proposition  that  any  contrivance,  design,  device,  name,  symbol, 
or  other  thing  may  be  employed  as  a  trade-mark  which  is 
adopted  to  accomplish  the  object  proposed  by  it;  that  is,  to 


2SS       MODKS  OF  OnTAININO   THI.E  TO  I'KIISONAI,  PrtOI'ERTV. 

point  out  the  true  source  and  ori<,Mii  of  the  poods  to  which  suid 
mark  is  applied,  or  even  to  point  out  ami  dosipnate  a  dialer's 
place  of  husiness.  distinpuishinp  it  from  the  business  locality  of 
other  dealers'.  The  mark,  however,  must  possess  the  rc(iuisite 
characteristics,  pointing  out  the  source  and  origin  of  the  poods, 
and  not  be  merely  descriptive  of  the  style,  (|uality,  or  character 
of  the  pooils  themselves.  Thus,  it  has  repeatedly  been  held 
that  where  the  name  or  device  employed  had,  from  use  or 
other  cause,  come  to  be  descriptive  of  the  poods  manufactured 
or  sold,  their  (|uality  and  use,  such  name  or  device  was  ineffec- 
tual and  could  not  be  upheld  as  a  trade-mark.  It  was  so  as  to 
the  letters  "A.  C.  A."  in  the  leadinp  and  famous  case  of  the 
Amoskeag  Mfp.  Co,  v.  Spear,  3  Sandf.  599;  as,  also,  in 
Stokes  V.  Landpraft,  17  Harb.  60S,  and  in  various  other  cases 
cited  by  the  defendants.  But  these  authorities  have  no  appli- 
cation to  the  mark  claimed  by  the  plaintiff,  for  the  name 
"Charter  Oak"  with  the  combined  device,  in  no  possible  view 
or  application  of  them,  are  either  descriptions  or  suppestive  of 
the  style,  character,  or  qualities  of  a  cast  iron  cooking  stove. 
In  their  natural  sipnificancy,  import,  or  symbolism  or  in  the 
use  made  of  them  prior  to  the  plaintiff's  appropriation  of  them 
as  a  trade-mark,  they  were  as  far  removed  as  can  well  be 
imapined  from  conveyinp  any  such  application  or  meaninp. 
And  that  constitutes  one  of  their  virtues  as  a  trade-mark. 
Fettridpe  v.  Merchant,  4  Abb.  Pr.  158;  Perry  v.  Truetitt,  6 
Bcav.  66;   Coffren  v.  Hrunton,  4  McLean,  516. 

The  general  rule  respecting  the  characteristics  of  trade-marks 
has  already  been  given.  The  following  names  and  designa- 
tions, among  many  others,  have  been  held  to  come  within  that 
rule.  As  pointinp  to  a  hotel,  "Irving  House,"  Howard  v. 
Henriques,  3  Sand.  726;  "Revere  House,"  Marsh  v.  Billings, 
7  Cush.  333,  54  Am.  Dec.  723;  as  pointing  to  a  manufac- 
turer or  dealer,  "Cocaine,"  Burnett  v.  Phalon,  9  Bosw.  192; 
"Ilowe,"  Howe  v.  Howe  M.  Co.,  50  Barb.  236;  "Akron," 
the  name  of  a  town,  Newman  v.  Alvord,  49  Id.  599  ;  "London 
Conveyance  Company,"  Knott  v.  Morgan,  2  Keen,  220; 
"303,"  the  designation  of  a  particular  pen,  Gillott  v.  Ester- 
brook,  47  Barb.  471  ;  "Bell's:  Life,"  the  name  of  a  newspaper, 
Clement  v.  Maddick,  i  Giff.  98;  "Roger  Williams  Long 
Cloth,"  Barrows   v.  Knight,  6  R.  L  434,  78  Am.  Dec.   452; 


Mi 


'Uf)I'ERT\". 

>  to  which  siiid 
iiatf  a  (Ualcr's 
I1CS8  locality  of 
s  the  rccjuisite 

1  of  the  jjoods, 
y,  or  character 
(lly  been  held 
,  from   use  or 

inanufactiircd 
cc  was  iiieffec- 
^t  was  so  as  to 
us  case  of  the 
i;  as,  also,  in 
us  other  cases 
lavc  no  appli- 
for  the  name 
)  possible  view 
'  sufjgcstive  of 
cooking  stove, 
lism  or  in  the 
iation  of  them 
s  can  well  be 
n  or  mcaninfj. 

a  trade-mark. 
r  V.  Truefitt,  6 

of  trade-marks 
3  and  dcsigna- 
me  within  that 
,"  Howard  v. 
rsh  V.  Billings, 
to  a  manufac- 
,  9  Bosw.  193; 
36;  "Akron," 
599 ;  "London 

2  Keen,  220; 
miott  V.  Ester- 
if  a  newspaper, 
Villiams  Long 
im.  Dec.   452  ; 


KII.I.KV    V.    FASSETT. 


3S9 


.'Day  k  Martin,"  C.oft  v.  Day,  7  Bcav.  S9.  The  name  and 
device  selected  by  the  plaintiff  were  adopted  to  point  out  the 
true  source  and  origin 'of  the  stoves  to  which  he  applied  them, 
and  were  therefore  possessed  of  the  requisite  characteristics  of 
a  trademark.  By  the  adoption  and  use  of  that  mark,  he 
acciuired  a  property  interest  therein  which  the  courts  will  pro- 
tect. Have  the  defendants  invaded  the  rights  of  the  plaintiff 
in  this  behalf?  The  defendants  accumulated  in  the  St.  Louis 
market  a  quantity  of  the  Rosenbaum  &  Co.  stoves  with  the 
nam^  "Ch.-.rter  Oak,"  upon  them,  which  they  held  for  sale  as 
"Charter  Oak"  stoves.  They  were  aware  o*  the  plaintiffs 
proprietorship  of  the  "Charter  Oak"  trade-mark  and  were 
pror.-eding  to  sell  in  defiance  of  plaintiff's  ri{:;hts. 

In  this  condition  of  things  the  present  suit  was  instituted  and 
r.n  injunction  granted,  restraining  the  defendants  from  the  pro- 
posed sale.     The  only  question   raised   on   this  branch  of   the 
case  is,  whether  the  use  of  the  name  "Charter  Oak"  separated 
from  the  odier  parts  of  the  plaintiffs  mark,   amounted  to  an 
infringement  of  his  rights,  assuming  his  ownership  of  the  name 
as  a  trade-mark  in  combination  with  the  device  of  oak  leaves. 
On  this  point  there  can  be  no  reasonable   doubt.     The   plam- 
tiff  s   stoves  were  not  conspicuously  known  by  the  particular 
device  which  surrounded  the  name  upon  them,  but  by  the  name 
itself.     That  was  the  conspicuous  clement  in  the  mark.      By 
that  name  the  stove  was  bought   and  sold,   and  known  in  the 
western  and  southern  markets.     It  was  the  prominent,  essential, 
and  vit.il  feature  of  the  plaintiff's  trade-mark.     That  name  the 
defendants    and    their    principals    appropriated    bodily,     and 
applied  it  to  their  stoves,  and  sought  to  acquire   the   sole  and 
exclusive  use  of  it  bv  filing  their  claim  in  the  recorder's  office 
under  the  statute.     That  shows  their  appreciation  of  the  value 
of  the  name  and  their  purpose,  not  only  to  use  it  themselves, 
but  to  exclude  the  originator  of  it   from  its   use.     Granting 
Filley's  exclusive  right,  there  can  be  no  doubt  that  the  things 
done  and   proposed  by  the  defendants   were  of  injurious  ten- 
dency,  and  that  the  name  "Charter  Oak,"  as  employed  by 
them,  was  eminently  calculated  to  mislead  buyers  as  to  the  true 
source  and  origin  of  the  stove  to  which  the  defendants  applied 
that  name.     If  the  name,  as  used  by  them,  was  calculated  to 

'9 


290       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

mislead,  the  intention  to  deceive  is  to  be   inferred  therefrom. 
Fettridge  v.  Merchant,  4  Abb.  Pr.  159;   Crawshay  v.  Thomp- 

son,  4  Man.  &  G,  385. 

The  imitation  of  an  original  trade-mark  need  not  be_  exact  or 
perfect ;  it  may  be  limited  and  partial.  Nor  is  it  r.quis.te  that 
the  whole  should  be  pirated.  Nor  is  it  necessary  to  show  that 
anyone  has  in  fact  been  deceived  or  that  the  party  complamed 
of  made  the  goods.  Amoskeag  Mfg.  Co.  v.  Spear,  2  Sand. 
607;  Clark  V.  Clark,  25  Barb.  79;  Edleston  v.  Vick,  23  Eng. 
L  &Eq  c;^,  S4;  Coats  V.  Holbrook,  2  Sand.  Ch.  597.  ^or 
is'it  necessary  to  prove  intentional  fraud.  "If  the  court  sees 
that  complainant's  trade-marks  are  simulated  in  such  a  manner 
as  probably  to  deceive  customers  or  patrons  of  his  trade  or  bus- 
iness, the  piracy  should  be  checked  at  once  by  injunction. 
Coffren  v.   Brunton,  4  McLean,  519;   Partridge  v.  Menck,   2 

Barb.  Ch.  103,  47  Am.  Dec.  281.  ,    .  ,u„ 

The  result  is  that  the  judgment  ot  the 
circuit  court   must   be    affirmed. 
COKSULT-As  to  what  may  be  adopted  as  trade-mark,  St-lchberg  v. 
Ponce    12S  U.  S.  686;  Woodward  v.  Lazar,  21  Cal.  447,  02  Am.  Uec. 
,°T^lLon  V.  Ber;y,  50  Md.  591,  33  Am.  Rep.  328;  Amos.eag  Mtg. 
Co   V   Trainer,  loi  U.  S.  51;  Adams  v.  Heisel,  31  Fed.  Rep.  279;    ^^W" 
ver'  Crystrmue  Co.  v.  Hubbard.  32  Fed.  Rep.  388,   Candee  v.  Deere. 
rilT  3^5  An.  Rep.  136;  IHer  v.  Abrahams,  82  N.  Y.  519,  37  Am. 
Rep    589:    Anheuser-Busch  Brewing  Co.  v.  Piza,  .4  ^ed-  Rep.    149; 
cluot    V    Esterbrook,  48  N.  Y.  376,  8  Am.  Rep.    543;    Metcalfe   v. 
B  ant  86  Ky.  33x,  9  Am.  St.  Rep.  282.    As  to  what  is  an  .nf-ngem^n 
Avery  v.  Meikle,  85  Ky.  435,  7  Am.  St.  Rep.  604;  Gor^^-^y^'J'^; 
lace    Id  Wall,  sn ;  McCann  v.  Anthony,  21  Mo.  App.  83,  fc>haver  v. 
lace,  14  wau.  511,                           ,„, .  pierce  v.  Guittard,  68  Cal.  63,  58 
Shaver,  54  Iowa,  20S,  37  Am.  Rep.  194,  rierce  "-^  ' 

Am  Rep  I :  Evans  v.  Von  Laar,  32  Fed.  Rep.  153;  Poph^"^  ^- ^ol^,  66 
NY  67,  23  Am.  Rep.  72;  Morgan's  Sons  v.  Tro.ell,  89  N.  Y.  292,  4^ 
Am.  Rep.  294.  _^ 

§  57.    Sam©— Names  of  individuals. 

MENEELY  v.  MENEELY. 
[62  N.  Y.  427 ;  20  Am.  Rep.  489-] 
Court  of  Appeals  of  New  York,  187$' 
Action   by  Edwin  A.  Meneely  and    George   R.    Meneely 
against  Clinton  H.  Meneely  and  George  H.  Kimberly  to  re- 


B9M 


^M 


SONAL  PROPERTY. 

,e   inferred  therefrom. 
Crawshay  v.  Thomp- 

k  need  not  be  exact  or 
Nor  is  it  r.^quisite  that 
necessary  to  show  that 
the  party  complained 
::o.  V.  Spear,  3  Sand. 
;ston  V.  Vick,  23  Eng. 
Sand.  Ch.  597.  Nor 
d.  "If  the  court  sees 
lated  in  such  a  manner 
■ons  of  his  trade  or  bus- 
t  once  by  injunction." 
?artridge  v.  Menck,   2 

hat  the  judgment  of  the 
urt  must  be   affirmed. 
.  trade-mark,  Stalchberg  v. 
21  Cal.  447>  8'  ^.m.  Dec, 
Rep.  328;  Amos!;eag  Mfg. 
i\,  31  Fed.  Rep.  279;    Saw- 
Lep.  388;   Candee  v.  Deere, 
ms,  82  N.  Y.  519,  37  A'"- 
,  Piza,  24  Fed.  Rep.    149; 
ti.  Rep.    543;    Metcalfe   v. 
;o  what  is  an  infringement, 
.  604;  Gorham  Co.  v.  Wal- 
I  Mo.  App.  83;  Shaver  v. 
e  V.  Guittard,  68  Cal.  63,  58 
;p.  153;  Popham  V.  Cole,  66 
V.  Troxell,  89  N.  Y.  292,  42 


is. 

[EELY. 
Lep.  489-] 
;  Tork,  l8rS' 

id    George   R.    Meneely 
rge  H.  Kimberly  to  re- 


MENEELY    V.  MENEELY. 


191 


Strain  the  defendants  from  using  the  name  "Meneely'    m  the.r 
business  of  bell  founding  which  they  conducted  in  Tn.s  under 
the   firm   name  of  "Meneely  &    Kimberly."      The    plamt.ffs 
were  engaged  in  the  business  of  bell  founding  in  West  Troy. 
This  business  was  established  by  Andrew  Meneely,  the  father  of 
the  plaintiffs  and  of  the  defendant,  Clinton  H.  Meneely.     The 
father,  at  his  de-^^'i  in  1S51,  bequeathed  the  business  and  good 
will  to  the  plaintiffs,  charged,  among  other  things,  with  the  sup- 
port of  said  Clinton  H.  Meneely  until  he  should  attain  to  the  age 
of  twenty-one  years,  and  also  charged  with  the  payment  of  sev- 
eral specific  legacies,  including  one   to  Clinton  H.  of  $3,000. 
The  plaintiffs  discharged  the  obligations  imposed  by  the  will, 
and  continued  the  business  ot  bell  founding  under  the  name  of 
"E   A.  &  G.  R.  Meneely."     Their  foundry  was  known  as  the 
♦'Meneely    Bell   Foundry,"    and   their    bells   became   widely 
known  as  the  "Meneely"  bells  and  the  name  of  "Meneely"  m 
connection  therewith  had  become  a  designation  or  trade-mark 
of  great  celebrity  and    value  to  the   plaintiffs.     In    1870  the 
defendants   Clinton   H.    Meneely   and   George   H.    Kimberly 
entered  into  a  copartnership  for  the  purpose  of  manufacturing, 
at  the  city  of  Troy,  bells  of  the  same  description,  manufactured 
and   sold   by   the   plaintiffs;  the  name  of  the  partnership  so 
formed  being  "Meneely  &  Kimberly." 

The  referee  found  that  the  defendants  by  the  use  of  the 
nam    of  "Meneely"  in  the  establishment  of  their  bell  foundry 
at  Troy,  and  in  m'anufacturing  and  selling  bells  at  Troy  under 
the  name  of  Meneely  &  Kimberly,  expected  and  intended  to 
derive  a  profit  and  advantage  by  reason  of  the  good  reputation 
and  celebrity  in  bell  founding  given  to  that  name  throughout 
the  country,  by  the  said  Andrew  Meneely  and  the  plaintiffs. 
That  the  use  of  the  name  of  Meneely  by  the  defendants  as 
hereinbefore  set  forth,  is  calculater'     ■>  and  does  mislead  per- 
sons who  are  not  personally  acquainted  with  the  plaintiffs  and 
defendants,  nor  with  the  respective  locations  of  Troy  and  West 
Troy,  and  the  difference  between  those  places,  into  the  belief 
that  the  defendants  are  the  proprietors  of  the  "Meneely  Bell 
Foundry,"  carried  on  by  plaintiffs;  and  such  use  of  the  name 
of   Meneely  by   the  defendants   is  injurious  to   the  plaintiffs' 

business  of  bell  founding.  ,     ,     .  • 

And,  as  conclusions  of  law,  that  Andrew  Meneely  in  his 
lifetime,  acquired  a  property  in  and  became  the  owner  of  the 


293       MODES  OF  OBTAINING  TITLE  TO  -ERSONAL  PROPERTY. 

name  "Meneely,"  as  a  valuable  trade-mark  in  the  business  of 
bell  founding.  That  the  plaintiffs  under  and  by  the  last  will 
and  testament  of  said  Andrew  Meneely,  succeeded  to  the  rights 
and  property  of  the  said  Andrew  Meneely,  in  said  name  of 
"Meneely"  as  a  trade-mark  in  the  business  of  bell  founding. 
And  that  the  defendants  have  no  right  to  use  the  name 
"Meneely"  in  the  business  of  bell  founding  at  Troy,  to  the 
injury  of  the  plaintiffs.  And  he  directed  judgment  that  an 
injunction  issue  restraining  defendants  from  using  the  name 
and   designation  "Meneely"  in  the  business  of  bell  founding 

at  Troy. 

The  judgment  entered  on  this  report  was  reversed  at  a  gen- 
eral term  of  the  supreme  court  and  plaintiffs  appealed. 

Rapallo,  J.— The  injunction  awarded  by  the  decision  of 
the  referee  restrained  the  defendants  from  in  any  way  using  the 
name  and  designation  "Meneely"  in  the  business  of  bell  found- 
ing in  the  city  of  Troy.  The  name  of  one  of  the  defendants  is 
Meneelv,  and  he  was  engaged  in  the  business  mentioned.  The 
necessary  consequence  of  the  injunction  was  to  compel  the 
defendant  Meneely  either  to  discontinue  his  business  of  bell 
founding  at  Troy  or  procure  it  to  be  conducted  in  the  name  of 
some  other  person.  He  was  also  absolutely  prohibited  from 
the  use  of  his  own  name  in  his  own  business  in  any  way. 

The  bare  statement  of  the  scope  of  the  injunction  would 
seem  to  be  sufficient  to  show  that  it  ought  not  to  have  been 
granted,  and  that  the  judgment  awarding  it  was  erroneous. 

The  cases  referred  to  in  its  support  fall  far  short  of  sustain- 
ing it.  If  the  defendants  were  using  the  name  of  Meneely  with 
the  intention  of  holding  themselves  out  as  the  proprietors  and 
managers  of  the  old  established  foundry  which  was  being  con- 
ducted by  the  plaintiffs  and  thus  enticing  away  the  plaintiffs' 
customers,  and  if  with  that  intention  they  used  the  name  in  such 
a  way  as  to  make  it  appear  to  be  that  of  the  plaintiff's  firm,  or 
resorted  to  any  artifice  to  induce  the  belief  that  the  establish- 
ment of  the  defendants  was  the  same  as  that  of  the  plaintiffs, 
and,  perhaps,  without  any  fraudulent  intent  they  had  done  acts 
calculated  to  mislead  the  public  as  to  the  identity  of  the  estab- 
lishments and  produce  injury  to  the  plaintiffs  beyond  that 
which  resulted  from  the  similarity  of  name,  then  the   cases 


PROPERTY. 

the  business  of 
by  the  last  will 
ed  to  the  rights 
n  said  name  of 

be'.',  founding. 

use  the  name 
at  Troy,  to  the 
dgment  that  an 
ising  the  name 
f  bell  founding 

versed  at  a  gen- 
pealed. 

the  decision  of 
y  way  using  the 
ss  of  bell  found- 
he  defendants  is 
nentioned.    The 

to    compel   Ihe 
business  of  bell 

in  the  name  of 
prohibited  from 

any  way. 
njunction  would 
not  to  have  been 
s  erroneous, 
short  of  sustain- 
of  Meneely  with 

proprietors  and 
1  was  being  con- 
ay  the  plaintiffs' 
the  name  in  such 
laintiff's  firm,  or 
lat  the  establish- 
of  the  plaintiffs, 
ey  had  done  acts 
itity  of  the  estab- 
iffs  beyond  that 
,  then  the   cases 


MENEKLY   V.   MENEELY. 


293 


referred  to  would  sustain  the  proposition,  not  that  a  court  of 
equity  would  absolutely  restrain  the  defendant  Meneely  fro.n 
the   L  of  his  own  name  in  any  way  or  form,  but  simply  that 
the  court  would  enjoin  him  from  using  it  in  such  a  way  as  to 
dece  ve  the  public  and   injure  the  plaintiffs.     The  manner  of 
u  ing  the  name   is  all  that  would  be  enjoined,  not  the  smnple 
use  of  it;  for  every  man  has  the  absolute  right  to  use  h>s  own 
„an.e  in  his  own  business,  even  though  he  may  thereby  mte  - 
fere  with  or  injure  the  business  of  another  person  bearmg  the 
same  name,  provided  he  does  not  resort  to  any  ^rt.fice  or  con- 
trivance  for  the  purpose  of  producing  the  .mpress.on  that  the 
establishments  are  identical  or  do  anything  -f'^^'f  ^J^  "';;- 
le.d      Where  the  only  confusion  created  is  that  which  re  ults 
;„.  the  similarity  of  the  names,  the  courts  will  not  mterfere 
A  person  can  not  make  a  trade-mark  of  his  own  name  and  thu 
obtain  a  monopoly  of  it  which  will  debar  all  other  persons  of 
the  same  name  from  using  their  own    names   m   then-   own 

^"Thrprinciple  is  fully  recognized  in  the  cases  cited  :n  the 
briefs   of   counsel.     They  have  been   so  fully  commented   on 
in  the  learned  opinion  of  my  brother.  Miller,  J.,  delivered  a 
general  term,  that  I  do  not  deem  it    necessary  or  proper  again 
fo  review  them  in  detail.     A  reference  to  a    ew  of  them  will 
suffice.     In  the  case  of  Croft  v.  Day,  7  Beav.  84,  the  intention 
of  the  defendants  to  imitate  the  blacking  manufactured  by  the 
plaintiffs,  under  the  name  of  Day  &  Martin    and  to  sell  it  as 
S    rs,  w  s  apparent.     The  master  of  the  rolls  stated:     'My 
decision  doe    not  depend  on  any  peculiar  or  exclusive  right  the 
p  attiffs  have  to  use  the  name  of  Day  &  Martin,  but  upon  ^he 
fact  of  the  defendants  using  their  names  in  ,^°""«'^^'°"  .^^ V"' 
n  circumstances   and  in  a  manner  calculated  to  mislead  the 
public  and  to  enable  the  defendant  to  obtain,  at  the  expense  of 
Day's  estate,  a  benefit  for  himself  for  which  he  is  not  ,n  fair 
^.d  honest  dealing  entitled.     *     *     »     He  has  a  right  to  carry 
on  the  business  of  a  blacking  manufacturer  honestly  and  fairly; 
he  has  a  right  to  the  use  of  his  own  name.     I  will  not  do  any- 
thing to  debar  him  from  the  use  of  that  or  any  other  name  cal- 
culaL  to  benefit  himself  in  an  honest  way ;  but  I  must  prevent 
him  from  using  it  in  such  a  way  as  to  deceive  and  defraud  the 
public."     The  form  of  the  injunction  was  settled  after  argu- 


294      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  FIIOPEKTY. 

meiit.  It  did  not  restrain  the  defendants  from  the  use  of  their 
names  of  Day  &  Martin,  but  from  selling  blacking  in  bottles 
having  labels  so  contrived  as  to  represent  it  to  be  the  same  as 
that  sold  by  the  plaintiffs.  Rodgers  v.  Norrill,  5  Mar.  Gr.  & 
Scott,  109,  was  an  action  for  damages.  The  defendant  used 
not  merely  the  firm  name  of  the  plaintiffs,  but  their  trade-mark 
of  a  crown  with  the  letters  V.  and  R.  on  either  side  above  the 
name;  and  the  verdict  was  sustained  on  that  ground. 

Sykes  V.  Sykes,  3  B.  &  Cr.  541,  was  a  similar  action  and 
decided  on  the  same  principle.  The  plaintiff  had  adopted  the 
mark  "Sykes  patent,"  which  the  defendant  imitated  in  order 
to  denote  that  the  goods  sold  by  him  were  of  plaintiffs  manu- 
facture;  the  defendant  had  never  had  any  patent  and  he 
imitated  the  plaintiff's  stamp. 

In  Holloway  v.   Holloway,  13  Beav.  209,  the  defendant  did 
not  merely  sell  his  pills  as  "H.  HoUoway's  Pills,"  but  sold 
them  in  boxes  and  with  labels  and  wrappers  made  in  imitation 
of  those  of  the  plaintiff  J.nd  manufactured  for  the  express  pur- 
pose  of    deceiving.      The    court   in    that   case    said:      "The 
defendant's  name  being  Holloway,  he  has  a  right  to  constitute 
himself  a  vendor  of  HoUoway's  Pills  and  Ointment,  and  I  do 
not  intend  to  say  anything  tending  to  abridge  that  right;  but  he 
has  no  right  to  do  so  with  such  additions  to  his  own  name  as  to 
deceive  the  public,  and  make  them  believe  he  is  selling  the  plain- 
tiff's pills  and  ointment."     The  injunction  in  that  case  was  not 
against  selling  pills  as  "HoUoway's  Pills,"  etc.,  but  against 
selling  them  as  such  put  up  in  boxes,  etc.,  having  labels  so 
contrived  or  expressed  as  by  colorable  imitation  or  otherwise, 
to  represent  them  to  be  the  same  pills,  etc.,  as  were  sold  by 
the  plaintiff.     In  Clark  v.  Clark,  25  Barb.  79,  the  plaintiff  had 
adopted  a  device  which  contained  the  name  Clark  &  Co.     The 
defendant's  was  a  copy  of  the  plaintiff's  device  except  that  it 
contained  the  name  of  J.  Clark,  Jr.,  &  Co.     The  injunction 
was  sustained  as  to  the  device,  but  not  as  to  the  name.     In 
Faber  v.  Faber,  49  Barb.   357,   an  injunction  restraining  the 
defendant  from  using  his  own  name  as  a  mark  upon  his  pencils, 
though  interfering  with  a  similar  business  previously  established 
by  another  person  of  the  same  name  was  refused,  and  1  find  no 
precedent  for  such  an  injunction.     See,  also.  Burgess  v.  Burgess, 
17  Eng.  L.  and  E.  257,  and  Meriden  Britannia  Co.  v.  Parker, 


PROPEUTY. 

he  use  of  their 
king   in  bottles 

be  the  same  as 

5  Mar.  Gr.  & 
defendant  used 
heir  trade-mark 

side  above  the 
)und. 

lilar  action  and 
had  adopted  the 
nitated  in  order 
ilaintiff's  manu- 

patent    and    he 

e  defendant  did 
Pills,"  but  sold 
lade  in  imitation 
the  express  pur- 
e    said:      "The 
|ht  to  constitute 
itment,  and  I  do 
lat right;  but  he 
own  name  as  to 
selling  the  plain- 
hat  case  was  not 
etc.,  but  against 
having  labels  so 
on  or  otherwise, 
as  were  sold  by 
the  plaintiff  had 
ark  &  Co.     The 
ce  except  that  it 
The  injunction 
0  the  name.     In 
n  restraining  the 
upon  his  pencils, 
iously  established 
jed,  and  1  find  no 
irgess  V.  Burgess, 
ia  Co.  V.  Parker, 


MENEELY   V.    MENEELV. 


295 


.      Q   r     1 2  Am.  Rep.  401.     In  the  case  last  cited 
•JO  Conn.  450;  S.  C,  12  J\m.  ivci^    ^  Rf,„prs  Bros, 

the  plainJff's  trade-mark  or  stamp  was  "1S47,  Roge'-s  Bros 

rZ  rsB,t."sLlLm  the  whole  or  a  par,      The  court 

Imc.  wt;  a  1  the  ease,  upon  the  subject.  I£  the  evWcnee 
"I  a  a„ra,teu,pt  by  the  defendants,  by  means  of  catalogues 
:X  any  orercontrLnce,  to  induce  the  belief  that  the  firm 
Z  Meneely  &  Kiml,erly  was  the  successor  of  Andrew  Meneely 
™  rte  ra^agcrs  of  ihe  plaintiffs'  bell  foundry,  those  aCs 
we  """"Kf  retrained ;  but  no  such  injunction  was  granted 
„,gh.  have  been  restraned  „Meneely-  in  any  way 

Is*  .h!t'wa,^e:joted,  and  that  w^^  the  very  thing  which 
*r  r:*ar:i:etn:::l-  term  did  Hgh.  m  reversing  .he 

'--r  t  :^z  '^uh  Si  rd^rmrir;: 

Sf/'for  the  defendants  in   pursuance  of  the  ..ipulaUon. 
A„  concur,  Mi"er,^..  no.  si.';^^^-  ^^^  ,__^^^^„,  _^,,„^,y. 

r-M     ,„  ,    Hnnnewell,  122  Mass.  148;  Rogers  v.  Rogers, 
COKSULT-Gdman  V.  Hunnew^ll,  ^rust,  3  Hun,  627;  Frazer 

53  Conn.  "^' 55^^™-  f;V  147,  2  An,.   St.  Rep.   .47;    Landreth  v. 
V.  Frazer  Lub.  ^''^   "^J",j,'Sen  Britannia  Co.  v.  Parker,  39  Conn. 

V.  Bonyon,  i  Mo.  (App.)  241. 


396       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPEIITV. 

§  58.    Same— Descriptive  -words. 

CELLULOID  MANUFACTURING  CO.  v.  CELLONITE 
MANUFACTURING  CO. 

[32  Fed.  Rep.  94.] 
United  States  Circuit  Court,  District  of  Nciv  Jersey,  1887. 

Bradley,  J. — The  bill  of  compLiint  in  this  case  states  that 
the  complainant  was  incorporated  under  the  laws  of  New  York 
in  1S71,  and  has  ever  since  that  time  used  its  corporate  name 
in  carrying  on  its  business  of  the  manufacture  and  sale  of  var- 
ious compounds  of  pyroxyline,  adapted  to  different  uses  and 
purposes,  and  that  its  name  has  become  of  great  consequence 
in  the  good  will  of  its  business,  its  standing,  and  the  reputation 
of  its  goods;   that,  in  order  to  designate  its  said  manufactured 
product  and  to  distinguish  it  from  similar  compounds  manufac- 
tured by  others,  the   complainant,  from  the  first,   adopted  and 
used  the  word  "celluloid,"  which  had  never  been  used  before, 
except  to  a  limited  extent  by  Isaiah  S.  and  John  W.  Hyatt,  by 
whom  the  word  was  coined,   and  who  were   engaged  in  the 
same  manufacture  at  Albany,  New  York,  and  used  the  word  as 
a  trade-mark;     and    when   complainant  was   incorporated   the 
said  Hyatts  entered  into  its  employ,  and  assigned  to  it  all  their 
rights  relating  to  the  business,  good  will,  and  trade-mark;  and 
complainant  has   ever  since   used  the   word  "celluloid"  as  its 
trade-mark,  by  impressing  or  stamping  it  into  the  surface  of  the 
articles  made  from  the  manufactured  product,  whereby  it  has 
acquired  a  high  reputation  as   denoting   complainant's    manu- 
facture, and  indicating  goods  of  superior  quality,  as  compared 
with  like  goods  sold  by  other  parties  under  the  names  of  chro- 
lithion,    lignoid,    pasbosene,   etc.;   that  in    1873   complainant 
caused  said  word  "celluloid"  to  be  registered  as  a  trade-mark 
in  the  United  States  patent  office,  under  the   act  in  such  case 
made  and  provided,  and   again  registered   in    1883,  under  the 
subsequent  act.     The  bill  then  complains  that  the  defendant,  in 
order  to  deprive  the  complainant  of  its  business  and  its  rights, 
and  to  create  an  unfair  competition,  since  the  first  day  of  Janu- 
ary, 1SS6,  has  adopted  the  name  of    Cellonite  Manufacturing 
Company,  with  intent  that  it  should  be  mistaken  for  complain- 


** 


PROPEUTV, 


::ellonite 


Jersey,  1887. 

case  states  that 
5  of  New  York 
orporate  name 
nd  sale  of  var- 
erent  uses  and 
it  consequence 
,  the  reputation 

manufactured 
Kinds  manufac- 
t,  adopted  and 
n  used  before, 
1  W.  Hyatt,  by 
engaged  in  the 
sed  the  word  as 
icorporated  the 
d  to  it  all  their 
adc-mark;  and 
elluloid"  as  its 
le  surface  of  the 
whereby  it  has 
ainant's  manu- 
f,  as  compared 
lames  of  chro- 
73  complainant 
s  a  trade-mark 
;t  in  such  case 
883,  under  the 
le  defendant,  in 

and  its  rights, 
rst  day  of  Janu- 

Manufacturing 
n  for  complain- 


CELLULOID  MKG.  CO.  V.  CELLONITE  MFG.  CO. 


297 


art's  name,  and  intends  to  use  it  in  the  transaction  of  busuiess 
similar  to  that  of  the  complainant;  that  the  similarity  of  names 
will  embarrass  and  obstruct  the  business  of  the   complamants, 
cause  confusion  and  mistake,  divert  complainant's  custom,  re- 
duce  its  sales,  and  deceive  the  public;   that  the   defendant  has 
commenced  to  erect  works  on  an  extensive  scale  for  the  manu- 
facture of  a  compound  of  pyroxyline,  to  be  put  on  sale  under 
the  name  of  "cellonitc,"  a  name  purely  arbitrary,   and  adopted 
to  enable  the    defendant  to   sell   the   article   as   complamanfs 
produce  ;  that  the  corporators  who  formed  the  defendant  com- 
pany  had    previously   been    engaged    in   the    manufacture    of 
pyroxyline  compounds  under  the  names  of  "pasbosene,"  "lig- 
noid,"  "chrolithion,"  etc.,  but  selected  the   new   name,  "cel- 
lonite,"  in  order  to  trade  upon   the  complainant's  reputation, 
and  to  sell  its  product  as  the  complainant's  and  intends  to  stamp 
its  goods  with  the  word  "cellonite,"  in  imitation  of  the  stamp 
on  complainant's  goods,  ip  order  to  sell  them  as  complamant  s 
manufacture.       The   bill    prays   an   injunction  to  prevent  the 
defendant  from  using  the  word  "cellonite,"  or  any  imitation  of 
the  word  "celluloid."     The  allegations  of  the  bill  are  verihed 
by  affidavits  and  exhibits. 

The  defendant  has  filed  an  answer,  in   which   it  denies  that 
the  complainant  has  any  right  to  the  exclusive  use  of  the  word 
"celluloid;"  alleges  that  many  companies  use  it  in  their  names, 
as  "Celluloid    Brush   Company,"  "Celluloid    Collar   &    Cuff 
Company,"    etc.,  which    have   been   allowed  by    complamant 
without  objection.     It  admits  the  selection  and  use  of  the  word 
by  the  complainant,  but  denies  any  exclusive  right  to  the  use  of 
it",  because  it  has  become   a  part  of  the   English  language  to 
designate  the   substance   celluloid,   and  the  impression  of  the 
word  on  the  articles  manufactured  by  complainant  merely  indi- 
cates the  substance  of  which  they  are  composed.     It  denies  that 
the  word  "cellonite"  was  adopted  for  the  purpose  of  imitating 
the  name  of  complainant,  or  the  name  stamped  on  the  com- 
plainant's goods.     It  avers  that  the  word  was  adopted  as  far 
back  as  1883,  and  has  been  continuously  used  ever  since,  not  to 
imitate  the  word  "celluloid,"  but  selected  as  better  describing 
the  exact  nature  of  the  pyroxyline   compound  used  by  the  de- 
fendant; the  same  being  a  compound  of  the  well  known  sub- 
stances  cellulose  and  nitre,  "cellonite"  being  merely  a  com- 


29S       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

pound  derivative  of  those  two  words;  that  the  defendant  aban- 
Soned  the  use  of  the  words  "pasbosene,"  "l.gno.d  etc., 
because  those  words  gave  no  information  as  to  the  chem.ca 
constituents  of  the  compounds  designated  by  them.  It  alleges 
that  it  has  for  four  years  been  engaged  in  manufactunng  and 
selling  goods  marked  "cellonite,"  and  until  now  no  attempt 
has  b!en  made  to  interfere  with  it.  To  show  that  the  word 
-celluloid"  is  a  word  of  common  use,  the  answer  cites  various 
patents  and  books  (but  all  subsequent  to  1873).  ^]'°  '^'/"''' 
of  the  patent  office  as  to  the  classes  of  inventions,  in  which  one 
of  the  sub-classes  is  "celluloid."  .       r    t   w 

The  only  verification  of  the  answer  is  the  oath  of  J.  K. 
France,  an  officer  of  the  company,  who  swears  that  the  con- 
tents  are  true,  so  far  as  they  are  within  his  knowledge;  and,  so 
far  as  stated  on  information  and  belief,  he  believes  them  to  be 

^'  The  answer  virtually  admits    that  the    corporators    of   tht 
defendant  had  been  engaged,  before  the  formation  of  the  de- 
fendant  company,   in  the  same   manufacture,   and  had   called 
their  produce,    "pasbosene,"    "lignoid,"   etc.;    and  that  they 
adopted  the  word  "cellonite,"  instead  of  those  des.gnated     or 
the  reason,  as  the  answer  says,  that  it  is  more  expressive  of  the 
constituents,  cellulose  and  nitre.     This  is  a  somewhat  singu  ar 
explanation.     The  termination  "ite,"  in  chemistry,  has  a  teen, 
nical  application  nothing  to  do  with  the  word  "n.tre,     and  not- 
withstanding the  denial  of  the  answer    (which,  however,  can 
not  be  regarded  as  verified  by  oath),  the   inference   strongly 
presses  itself  that  the  name  was  adopted  on  account  of  its  sim- 
ilaritv  to  "celluloid,"  as  the  complainant  charges. 

In  alleging  that  the  word  "cellonite"  has  been  used  by  the 
defendant  since  1883,  the  defendant,  which  was  not  mcorpo- 
rated  until  May,  18S6,  identifies  itself  with  the  previous  associ- 
ation,  shown  by  the  affidavits  to  have  been  called  the  "Mer- 
chants'  Manufacturing  Company,"  composed  of  the  sarne 
corporators,  who  abandoned  the  old  name,  and  assumed  the 
new  one,  for  some  purpose  or  other.  The  explanation  given 
for  so  doing  is  not  entirely  satisfactory.  Here  are  two  facts 
Inding  side  by  side  :  Firs^,  the  fact  that  the  Celluloid  Man- 
ufacturfng  Company,  an  old,  well  established  concern,-is 
doing  a  large  and  prosperous  business,  with  a  good  will  result- 


J 


ROPERTY. 

fendant  aban- 
ignoid,"  etc., 

the  chemical 
n.  It  alleges 
facturing  and 
\  no  attempt 
:hat  the  word 

cites  various 
also  the  rules 
,  in  which  one 

5ath   of  J.  R. 
that  the  con- 
ledge;  and,  so 
es  them  to  be 

jrators    of   the 
ion  of  the  de- 
md  had   called 
and  that  they 
designated,  for 
:pressive  of  the 
lewhat  singular 
itry,  has  a  tech. 
nitre,"  and  not- 
i,  however,  can 
jrence  strongly 
ount  of  its  sim- 
es. 

een  used  by  the 
vas  not  incorpo- 
previous  associ- 
alled  the  "Mer- 
;d  ot  the  same 
md  assumed  the 
xplanation  given 
;re  are  two  facts 
:  Celluloid  Man- 
led  concern, — is 
good  will  result- 


CELl.ULOID  MFG.  CO.   V.   CEI.t.ONlTE  MFG.  CO. 


299 


in.  from  many  years  of  successful  effort,  and  calls  the  product 
7its  nlufaJture  ''celluloid,"  which  has  become  such  a  pop- 
u  -  desi<^nation  that,  as  the  defendant  says,  .t  -«  become 
tor  or  ted  in  the  English   language;  seconMy,  the  fact   that 

he  Merchants'  Manufacturing  Company,  which  produces  sub- 
st.ntia ly  the   same   article,   and  calls   it  by   different    names 
tip    b  sene,"   "Ugnoid,"  etc.  (with  wl.t  ^^^^^^^J^^ 
told),  suddenly  changes  its  name  to  that  of  Ce   on.te  Ma 
f-xcturing  Company,  and  calls  its  produce  "cellon.te.        It  w  11 

ake  Ireat  deal  of  explanation  to  convince  any  man  of  ord- 
n  uv  business  experience  that  this  change  ot  name  was  no 
:;;opted  for  the  purpose  of  imitating  that  of  the  old,  successful 

TisThe  object  of  the  law  relating  to  trademarks  to  prevent 
one  mlr  from  unfairly  stealing  away  another's  busmess  and 
Tod  will      Fair    competition  in  business  is  legitimate,  and 
^p  omoTes   the  public  good;    but  an    -fair   appropnat.on   o 
another's  business,   by  using  his  name  or  track-ark    or  an 
imitation   thereof  calculated   to  deceive  the  P"bl.c,   or  many 
oTh  r  way,  is  justly  punishable  by  damages,  and  w.U  be  enjom- 
^d  byTJourt  of  eq.^ty.     The  question  before  me  .s  whether 
the  law  has  been  violated  in  the  present  case. 
^Zt     As  to  the  imitation  of  the  complainant's  name.     The 
fact  .ha;  both  are  corporate  names  is  of  "«  consequence  m^s 
.i«n      Thev  are  the  business  names  by  which  the  parties 

ZZ^n   anlare      be  dealt  with  precisely  as  if  they  were  the 
names  r;dvl^  or  partnerships.     The  defendant's  name 

TaHf    tfown   choosing,  and,  if  an  unlawful  imitation  of  the 
Tomp    inant's,  is  subject  to  the  same  rules  of  law  as  if  .   wer 
the  nnme  of  an  unincorporated  firm  or  company.     It  is  not 
dLticTwUh  the  complainant's  name.     That  wou  d  be  too 
"ros    an  ^-asion  of  the  complainant's  right.     Similarity,  no 
Sen  ity    i    the  usual  recourse  when  one  party  seeks  to  benefit 
h  msS'  by   the   good  name  of  another.     What  similarity  is 
^ffilnt  t'o  effect'the  object  has  to  be  'determine     m  eac    case 
bv  its  own  circumstances.     We  may  say,  generally,  that  a  sim 
•Hrity  which  would  be  likely  to  deceive  or  mislead  an   ordinary 
nsirting  customer  is  obnoxious  to  the  law.     Judged  by 
Zstand  rd,  it  seems  to  me  that,  considering  the  nature  and 
•    umsta'ce   of  this  case,  the  name  ''Cellonite  Manufacturmg 


300       MODITS  Ol.    OiriA.MNG  WVLE  TO  1-EKSONAL  TUOPEUTV. 

Company"  is  sufficiently  similar  to  that  of  the  "Celluloid  Man- 
ufacturiuf,  Company"  to  amount  to  an  infrmgcment  of  the 
complainant's  trade  name.  The  distin<,nMsh.ng  words  m  both 
nu.nes  are  rather  unusual  ones,  but  supposed  to  have  the  same 
sense.  Their  general  similarity,  added  to  the  ident.ty  of  the 
other  parts  of  the  names,  makes  a  whole  wh.ch  is  caiculated  to 

'"'lw«//y.  As  to  the  complainant's  alleged  right  to  the 
exclusive  use  of  the  word  ..celluloid"  as  a  trade-ma-  and  the 
defendant's  alleged  imitation  thereof.  On  th.s  branch  o  the 
case,  the  defendant  strenuously  contends  that  the  word  eel- 
luloid"  is  a  word  of  common  use  as  an  appellative,  to  desig- 
nate the  substance  celluloid,  and  can  not,  therefore  be  a  trade- 
mark; and,  secondly,  if  it  is  a  trademark,  the  defendant  does 
not  infringe  it  by  the  use  of  the  word  "ce'lon.te." 

As  to  the  first  point,  it  is  undoubtedly  true,  as  a  general  rule, 
that  a  word    merely  descriptive  of    ^l.e   article  to   wluch  it  is 
applied   can  not  be  used  as  a  trade-mark.     Everybody  has  a 
rlXt  to  use  the  common  appellatives  of  the  language,  and  to 
apply  them  to  the  things  denoted  by  them.     A  dealer  in  flour 
can  not  adopt  the  word  "flour"  as  his  trade-mark,  and  prevent 
others  from  applying  it  to  their  packages  of  flour      1  am  satis- 
fied from  the  evidence  adduced  before  me  that  the  word    'cel- 
luloid"  has   become    the   most   commonly   used  name  of    the 
substance   which  both    parties  manufacture,  and,   if    the    rule 
referred  to  were  of  universal   application,  the  position  of  the 
defendant  would  be  unassailable.     But  the  special  case  before 
me  is  this:     The  complainant's  assignors,  the  Hyatts,  coined 
and  adopted  the  word  when  it  was  unknown,  ^nd  made  it  their 
trade-mark,  and  the  complainant  is  assignee  of  all  the  rights  of 
the  Hyatts.     When  the  word  was  coined  and  adopted,  it  was 
clearly  a  good  trademark.     The  question  is  whether  the  sub- 
sequent  use  of  it  by  the  public,  as  a  common  appel  ative  of 
the  substance  manufactured,  can  take  away  the  complainant  s 
right.     It  seems  to  me  that  it  can  not. 

As  a  common  appellative,  the  public  has  a  right  to  use  the 
word  for  all  purposes  of  designating  the  article  or  product, 
except  one,-it  can  not  use  it  as  a  trade-mark,  or  in  the  way 
that  a  trade-mark  is  used,  by  applying  it  to  and  stamping  it 
upon  the  articles.     The  complainant  alone  can  do  this,  and  any 


IIOPEUTV 


CELLULOID  MI  G.  CO.   V.  CKLLONITK  MFG.  CO. 


3"> 


clUiloid  Man- 
emcnt  of  the 
words  in  both 
lave  the  same 
Jeiitity  of  the 
calculated  to 

right  to  the 
ma-  .,  and  the 
branch  of  the 
lie  word  "cel- 
tive,  to  desig- 
re,  be  a  trade- 
iefcudant  does 

a  general  rule, 
to  which  it  is 
erybody  has  a 
iguage,  and  to 
dealer  in  flour 
k,  and  prevent 
r,  1  am  satis- 
the  word  "cel- 
i  name  of  the 
d,  if  the  rule 
position  of  the 
:ial  case  before 
Hyatts,  coined 
id  made  it  their 
all  the  rights  of 
adopted,  it  was 
diether  the  sub- 
1  appellative  of 
e  complainant's 

right  to  use  the 
icle  or  product, 
{,  or  in  the  way 
and  stamping  it 
do  this,  and  any 


other  person  doing  it  will  infringe  the  complainant's  right. 
Perhaps  the  defendant  would  have  a  right  to  advertise  that  it 
manufactures  celluloid.  But  this  use  of  the  word  is  very  differ- 
ent from  using  it  as  a  trade-mark  stamped  upon  its  yoods.  It 
is  the  latter  use  which  the  complainant  claims  to  have  an  exclu- 
sive right  in;  and,  if  it  has  such  right  (which  it  seems  to  me 
it  has),  then  such  a  use  by  the  defendant  of  the  word  "cel- 
luloid" itself,  or  of  any  colorable  imitation  of  it,  would  be  an 
invasion  of  the  complainant's  right.  As  a  trade-mark  it  indi- 
cates that  the  article  bearing  it  is  the  product  of  the  complain- 
ant's manufacture.  If  another  party  uses  it  in  that  way,  it 
indicates  a  falsehood,  and  is  a  fraud  on  the  public,  and  an 
injury  to  the  complainant.  The  essence  of  the  law  of  trade- 
marks is  that  one  man  has  no  right  to  palm  off,  as  the  goods  or 
manufacture  of  another,  those  that  are  not  his.  This  is  done 
by  using  that  other's  trade-mark,  or  adopting  any  other  means 
or  device  to  create  the  impression  that  goods  exhibited  for  sale 
are  the  product  of  that  other  person's  manufacture  when  tiiey 
are  not  so. 

The  subject  is  well  illustrated  by  the  case  of  McAndrevv  v. 
liassett,  4  De  Gex,  J.  &  S.  380.  The  plaintiffs  produced  a  new 
article  of  liquorice,  and  stamped  the  sticks  with  the  word 
"Anatolia,"  some  of  the  juice  from  which  they  were  made 
being  brought  from  Anatolia,  in  Turkey.  The  article  becon-ing 
very  popular,  the  defendants  stamped  their  liquorice  sticks  with 
the  same  word.  Being  sued  for  violation  of  plaintiff's  trade- 
mark, one  of  their  defenses  was  that  no  person  has  a  right  to 
adopt  as  a  trade-mark  a  common  word,  like  the  name  of  a 
country  where  the  article  is  produced.  Lord  Chancellor  West- 
burv  said:  "That  argument  is  merely  the  repetition  of  the 
fallacy  which  I  have  frequently  had  occasion  to  expose. 
Property  in  the  word,  for  all  purposes,  can  not  exist;  but 
property  in  that  word,  as  applied  by  way  of  stamp  upon  a  par- 
ticular vendible,  as  a  stick  of  liquorice,  does  exist  the  moment 
the  article  goes  into  the  market  so  stamped,  and  there  obtains 
acceptance  and  reputation,  whereby  the  stamp  gets  currency  as 
an  indication  of  superior  quality,  or  of  some  other  circumstance 
which  renders  the  article  so  stamped  acceptable  to  the  public." 
Page  386. 


3„:       MOOKS  OK  ODTAIMNO  TITLE  TO  PERSONAL  IMU.rEUrY. 

Anolhcr  ca.c  throwinR  HRht  on  the  sul-ject  is  that  of  Singer 
Machine   Ma.u.fR  Co.   v.   Wilson,  3  AlM^-   Cas.  ^T^-      H^^-'e 
the  .U-fcn.hnU,  a  nianufacturcr  and  vendor  of  sewnR-maclnne., 
inserted    in  his   price-list,    amons,'  other    articles  for    sale,   the 
-Sin.^er  Sewing-Machine,-  and  sold  machines  by  that  name 
but  having  his  own  trademark  upon  them.     The  phunt.ft  sued 
him  on  the  ,.ound  that  by  a  Sin.er  sewin^-machme  ^^ ;-  ""der- 
stood  in  the  community  a  sewing-machme  made  by  Smgcr   the 
inventor,  or  by  the  plaintiff,  his  assignee  and  successor  m  busi- 
ness     The   plaintiff  ccntended,   therefore,  that  the   advertise- 
..ent  was  a  fraud  on  the  public,  and  an  invasion  of  its  exc  usiv-e 
ri.rht  t..  the  name  "Singer."     The  defendant  conten.led  tha 
tli;  terms  "Singer  Sewing-Machine"  m,    nt  a  r>^^'^f^^ 
.machine  (which  he  described),  irrespective  o    who  ma  lufac- 
tured  it;    hat  the  word  "Singer"  had  come  to  be  descriptive  in 
Us  character,  and  would  not  have  the  effect  attributed  to  it  by 
the  plaintiff.     The  judges  who  delivered  opinions  in  the  case 
held  that  if  the  use  of  the  name  "Singer"  gave  the  public  to 
uu.lerstand  that  the  defendant  sold  machines  made  by  the  plain- 
tiff, it  was  a  wrong  done  to  the  plaintiff,  but  that  1    the  name 
had  come  into  common  use  as  a  name  of  a  prtrt.cular  kind  of 
machine,  irrespective  of  the  maker,  the  defendant  had  a  right 
to  use   it   in  his  advertisements   in  that  sense    using  his  ovu 
trade-mark  on   the  article  itself,    and  it  was  held  by  aU   the 
.dges   that  it  was   a  matter  to   be    determined    by   evu^nce 
Ihether  the  use  of  the  name  in  the  advertisement  had  the  one 

effect  or  the  other.  .  .  , 

This,  it  will  be  obP  rved,  was  a  case  of  advertising,  and  not 
of  imitating  a  trade-mark.  Still,  if  it  had  the  same  effect,  it 
wa  1  e  d  to  be  equally  culpable.  The  ccse  does  not  decide 
Tt.  f  the  word  "Singer"  had  been  the  plaintiff's  trade-mark, 
.change  in  its  use  would  )uwe  affected  such  trade-mark, 
Z  cJo^s  decide  that  an  exten.icu  of  its  use  might  render  the 
word  harmless  in  an  advertisement 

The  defendant's  counsel  in  he  present  case  placed  great 
reliance  on  the  decision  in  Cioth  Co.  v.  Cloth  Co.,  11  H.  L. 
c!is  .2V  After  carefully  reading  that  case,  I  do  not  see  that 
h  necessarily  governs  the  present.  No  question  was  made  as 
to  he  -"-!f  the  companies.  The  trade-m ark  there  was  a 
large  circular  label  stamped  upon  the  cloth,  contaming,  w.thm 


UOI'KUrY. 

that  of  Sinj^cr 
376.     There 
inR-machines, 
for    sale,  the 
by  that  name, 
I  phuntiff  sued 
iiic  was  under- 
by  Singer,  the 
:ccssor  in  busi- 
the   advcrtisc- 
of  its  excUjsive 
contended  that 
irticular  kind  of 
who  mamifac- 
e  descriptive  in 
ributed  to  it  by 
ons  in  the  case, 
•e  the  public  to 
de  by  the  plain- 
hat  if  the  name 
jticular  kind  of 
lant  had  a  right 
,  using  his  own 
held  by  all   the 
cd    by   evidence 
lent  had  the  one 

ertising,  and  not 
e  same  effect,  it 
does  not  decide 
tiff's  trade-mark, 
iuch  trade-mark, 
might  render  the 

ase  placed  great 
th  Co.,  II  H.  L. 
I  do  not  see  that 
;ion  was  made  as 
mark  there  was  a 
containing,  within 


CEI.LULOIO  MFG.  CO.   V.  CEM.ONITE  MFG.  CO. 


303 


\tn   circumference,  the   name    of    the   former  company    which 
carried  on  the  manufacture,  and  the  places  where  it  had   been 
carried   on,    thus:       "Crockett    International    Leather    Cloth 
Company,  Newark,  N.  J.,  U.  S.  A.;   West  Ham,  Kssex,  Eng- 
land."    Within  the  circle  were,   first,  the  figure  of  an  eagle, 
displayed,   under   the    word    'Kxcclsior,"    and    then    certain 
announcements   in  large  type,  as  follows:     "Crockett  iV:  Co. 
Taimed  Leather  Cloth  ;  patented  Jan'y  24,  '5^-     ^-  1^-  '^  C.  1'. 
Crockett,   Manufacturers."     The   court  held  this   label   to  be 
partly  trade-mark  and  partly  advertisement;   and,  as  the  cloth 
was  not  patented,  and  J.   R.  &  C.   1'.  Crockett  were  not  the 
manufacturers,  the  court  was  inclined  to  agree  with  the   lord 
chancellor  that  these  statements  invalidated  the  label  as  a  trade- 
mark ;  but  Lords  Cranworth  and  Kingsdown  preferred  to  place 
their   decision    against   the   plaintiff   on    the    ground    that   the 
defendants'  label  did  not  infringe  it.     They  pointed  out  differ- 
ences   in    figure,    and    showed    that   the   announcements   were 
different;   and  the  defendants'   announcement  being  "Leather 
cloth,  manufactured  by  their  manager,  late  with  J.  R.  &  C.  P. 
Crockett   &  Co.,"  without  any   reference    to   a    patent.   Lord 
Kingsdown    said:      "The   leather  cloth,  of   which   the   manu- 
facture was  first  invented  or  introduced  into  the  country  by  the 
Croc'ictts,  was  not  the  subject  of  any  patent.     The  defendants 
had  the  right  to  manufacture  the  same  article,  and  to  represent 
it  as  the  same  with  the  article  manufactured  by  the  Crocketts ; 
and,  if   the    article  had  acquired  in    the  market   the  name  of 
Crocketts'    leather  cloth,  not  as   expressing  the  maker  of  the 
particular  specimen,  but  as  describing  the  nature  of  the  article 
by  whomsoever  made,  they  had  a  right  in  that  sense  to  manu- 
facture  Crocketts'  leather  cloth,  and    to  sell  it  by  that  name. 
On  the  other  hand,  they  had  no  right,  directly  or  indirectly,  to 
represent  that  the  article  which  they  sold  was  manufactured  by 
the   Crocketts  or  by  any  person  to   whom  the   Crocketts  had 
assigned  their  business  or  their  rights.     They  had  no  right  to 
do  this,  either  by  positive  statement,  or  by  adopting  the  trade- 
mark of  Crockett   &  Co.,  or  of   the    plaintiffs  to   whom   the 
Crocketts  had  assigned  it,  or  by  using  a  trade-mark  so  nearly 
resembling  that  of  the  plaintiff  as  to  be  calculated  to  mislead 
incautious  purchasers." 


304       MOnES  OK  OHTAINIXG  TITLE  TO  PERSONAL  PROPERTV. 

It  seen,  to  me  that  the  true  doctrine  could  "o*  be  more  hap^ 
pilv  expressed  than  is  here  done  by  Lord  Kmgsdown  There 
I  nothing  in  the  case,  nor  in  the  opin.ons  of  any  of  the  judges, 
adverse  to  the  claim  of  the  complamant. 

There  IS  a  case  in  the  New  York  Reports  (Selchow  v  Baker, 
oJn  V  59)which  comes  very  near  to  that  now  under  con- 
93  .N.  1.  bJf  J  ,.^,j^^^^  animals,"   and  other 

Jnrt  to  .Icsisnatc  cctnin  p>,..l«s  manufactured  and  .old  by 
ten  n  wh  h  picture,  of  animals,  etc.,  on  card  board,  >vere 
S  up  .>  p'ces,  and  tbo  P--  ^  '" S^l^V 'aC:.:.'" 

bv  ,1  u  Th/dcferdauts  infringed,  and  the  qucBt.on  was 
iLt:  ;Hs  V.nd  of  designation  conid  avail   as  a    ...le-n, 

°""  Tit  tm  'those  manufactured  and  sold  by  others,   and 

s.™dngtbb^«  become  so  generally  known  that  it  h,.bee,; 
wTf  bvthe  public  as  the  ordinary  appellat.on  of  the  art.cle. 

-'?:::■  r  is^o  direc.,y  -J- ;-:;;:riroT;:::, 

ir:c;.nL;tLr;:te.iu;^ 

"i;,t  o„^;  ;:sf'-:lt;ng  to  be  considered,  therefore  n 

:r:ln,;dupo„..m»nn.--J-^^^^^^^^^^^^^ 
i-rar„:r;;od:;rof':besan,e.na„nfLturersaswhe 


r 


iOSAl.  PROPERTV. 

)uld  not  be  more  hap- 
1  Kingsdown.  There 
1  of  any  of  the  judges, 

rts  (Selchow  v.  Baker, 

0  that  now  under  con- 

1  animals,"  and  other 
he  plaintiff  as  a  trade- 
ufactured  and  sold  by 
,  on  card  board,  were 
IS  to  put  the  pieces  to- 
el  "Sliced  Animals," 
xes  of  these  goods  sold 

and  the  question  was 
avail  as  a  trade-mark, 
on   of   the  court,   after 

concludes    as   follows: 
acturer  has  invented  a 
ord  or  a  word  or  words 
:or  the  first  time  to  his 
ifactured  by  him,  to  dis- 
,nd  sold  by  others,   and 
[•  descriptive  of  the  arti- 
iteristics,  but  is  arbitrary 
lenote  grade  or  quality, 
;  of  that  name,  notwith- 
y  known  that  it  has  been 
Dpellationof  the  article." 
lat  it  seems  unnecessary 
clear,  as  matter  of  law, 
exclusive  use  of  the  word 

considered,  therefore,  is 
the  word  "cellonite,"  as 
goods  as  a  trade-mark, 
of  the  complainant.  Is 
;  the  word  "celluloid," 
ired  articles,  to  deceive 
lem  to  suppose  that  they 
me  manufacturers  as  when 


i 


CELLULOID  MFG.  CO.  V.  CELLONITE  MFG.  CO. 


305 


n 


they  purchased  articles  marked  "celluloid  ?"     I  think  this  ques- 
tion must  be  answered  in  the  affirmative.     I  think  that,  under 
the  circumstances  of  the  case,  the  word  "cellonitc"  is  sufficient- 
ly like  the  word  "celluloid"  to  produce  the  mischief  which  is 
withiii  the  province  of  the  law.     I  say,  under  the  circumstances 
of  the  case.     By  that  I  mean  the  previous  nomenclature  applied 
to   the    articles    as   manufactured    by  different  persons.     The 
complainant  has  always  stamped  its  goods  with  the  word  "cel- 
luloid."    Other    manufacturers    have    called    the   product  as 
manufactured  by  them  by  names  quite  unlike  this,  as  "pasbo- 
sene,"  "lignoid,"  "chrolithion,"  etc.;    so   that  a  wide  differ- 
ence in  designation  and  marking  has  existed  between  the  com- 
plainant's goods  and  those  of  all  others.     The  adoption  now  of 
a  word  and  mark  so  nearly  like  the  complainant's  as  "cellon- 
ite"  can  not  fail,  it  seems  to  me,  to  mislead  ordinary  purchasers, 
and  to  deceive  the  public. 

The  defendant,   however,   sets  up  two  grounds  of  defense 
against  the  application  for  an  injunction  outside  of  the  merits 
of  the  case:     First,  that  the  complainant  has  acquiesced  in  the 
use  of  the  word  "celluloid"  in  the  names  of  a  great  number  of 
other   companies,    several   of   which    are    enumerated   in    the 
answer,  such  as  the  "Celluloid  Brush  Company,"  the  "Cellu- 
loid Collar  &   Cuff  Company,"   and  the  like;   and,  by   such 
acquiescence,  has  lost   any  right  to  complain  of  such  use  by 
other  companies.     But  it  is  obvious  that  such  special  names, 
indicating  confinement  to  a  particular  branch  of  the  trade,  are 
wholly  unlike  the  complainant's  general  name   of  "Celluloid 
Manufacturing    Company."     Besides    this,    it    is    altogether 
probable,  as  we  gather  from  one  of  the   affidavits,   that  these 
branch  companies  are  mostly  licensees  of  the  complainant,  and 
very  properly  use  the  word  "celluloid"  in   their  names.     We 
think  that  this  defense  can  not  justly  prevail. 

The  other  is  of  somewhat  the  same  character— supposed 
laches  rnd  acquiescence  on  the  part  of  the  complainant,  in 
allowing  the  defendants  theipselves,  for  three  or  four  years 
prior  to  the  suit,  to  use  the  word  "cellonite,"  stamped  on  their 
articles  of  manufacture,  and  in  their  business  name.  How  the 
d«"fendant  could  have  done  this  before  its  own  existence  is  diffi- 
cult to  understand.  But,  suppose  it  is  meant  tbnt  it  was  done 
by  the  corporators  and  predecessors  of  the  defendaixt,  there  is 

20 


306      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PBOl'EUTY. 

no  proof  that  it  ever  came  to  the  knowledge  of  the  complnm- 
anf  and  the  fact  that  the  previous  name  used  under  the  former 
corporate  organization  was  that  of  the  "Merchants'  Manufac 
turing  Company"  is  sufficient  to  afford  the  complaii^nt  pr.ma 
facie  grouni  of  excuse  for  not  having  learned  of   the  alleged 
use   of   the    word   "cellonite,"    if  it  ever  was  used.     I  do  not 
think  that  either  of  these  defenses  can  avail  the  defendant     My 
conclusion  is  that  the  complainant,  as  the  case  now  stands,   is, 
in  strictness,  entitled  to  an  injunction  to  restram  the  delendant 
from  using  the  name  "Cellonite  Manufacturing  Company,     or 
any  other  name  substantially  like  that  of  the  complainant;   and 
from  using  the  word  "cellonite"  as  a  trade-mark  or  otherwise, 
upon  the  goods  which  it  may  manufacture  or  sell,  or  any  other 
word  substantially  similar  to  the  word  "celluloid,"   the  trade- 
mark  of  the  complainant.  _ 

But  my  great  reluctance  to  grant  a  preliminary  injunction  for 
suppressing  the  use  of  a  business  name,  or  of  a  trade-nark    in 
any  case  in  which  the  matter  in  issue  is   a  subject  for  fair  dis- 
cussion, and  admits  of  some  doubt  in  the   consideration  of  its 
facts,  induces  me  to  withhold  the  order  for  the  present  on  con- 
dition  that  the  defendant  will  agree  to  be  ready   to   submit  the 
cause  for  final  hearing  at  the  next  stated  term   of  the   court, 
which  commences  on  the  fourth  Tuesday  of  September.     It  is 
possible  that  additional  evidence,  or  a  fuller  verification  of  the 
allegations  of  the  answer,  may  so  modify  the  facts  of  the  case 
presented  for  consideration  as  to  lead  to  a  change  of  views  on 
the  question  of  infringement,   or  of  excuse  therefor      At  all 
events,  it  will  be  more  satisfactory  not  to  render  judgment  m 
the  case  until  the  defendant  has  been  fully  heard    and  when  it 
would  have  a  right  of  immediate  appeal.     Should  the  defend- 
ant not  be  ready  for  a  hearing  at  the  time  indicated,  the  present 
motion  may  be  renewed  without  additional   argument,   or  the 
complainant  may  take  such  other  course  as  it  shall  be  advised. 
At  the  September  term  no  further  evidence  was  offered,  and  an  order 
for  iniunction  was  granted  without  opposition.  ,  .       „  „. 

CONSULT-Glendon  Iron  Co.  v.  Uhler,  75  Pa-  St.  467,  '^ ^"^'^'^f^^' 
Newman  v.  Alvord,  5XN.  Y.  189,  -^m.Rep  588,  Metcalfv  Brand  86 
Ky  ^y,  9  Am.  St.  Rep.  252;  Caswell  v.  Dav.s,  58  N.  Y.  233,  n  Am. 
Rep.'^3;,  Brill  V.  Singer  Sewmg  Mach.  Co.,  41  Ohio  St.  127,  5^  Am 
Rep  74  R"-f-'^  cLmical  Works  v.  Muth,  35  If;^^'^'^^^'  ^^^ 
Siege?,  116  111.  .37.  S6  Am.  Rep.  767;  Simmons  Medicine  Co.  v.  Mans- 
field Drug  Co.,  93  Tenn.  84. 


:^ 


mM 


•BOl'EllTY, 

the   complain- 
ider  the  former 
nts'  Manufac- 
plair-ant  prima 
of   the  alleged 
ised.     I  do  not 
lefendant.    My 
low  stands,   is, 
I  the  delendant 
Company,"  or 
nplainant;   and 
k  or  otherwise, 
11,  or  any  other 
id,"   the  trade- 

■y  injunction  for 
I  trade-mark,  in 
;ct  for  fair  dis- 
isideration  of  its 
present,  on  con- 
r   to   submit  the 
m   of  the   court, 
eptember.     It  is 
erification  of  the 
acts  of  the  case 
nge  of  views  on 
herefor.     At  all 
der  judgment  in 
ird,  and  when  it 
Duld  the  defend- 
:ated, the  present 
irgument,   or  the 
shall  be  advised. 
Efered,  and  an  order 

^67,  15  Am.  Rep. 599; 
Metcalf  V.  Brand,  86 
N.  Y.  233,  17  Am. 
hio  St.  127,  52  Am. 
:d.  Rep.  574;  Ball", 
edicine  Co.  v.  Mans- 


MODES  OF  OBTAIN-ING  TITLE  TO  PEKSOXAL  PUOPEHTY.       307 

§  59.  Same— Deception  in  use  of. 

CALIFORNIA  FIG  SYRUP  CO.  v.  PUTNAM. 

[66  Fed.  Rep.  750;  69  Id.  740.] 

Circuit  Court  of  the  United  States,  District  of  Mass- 
achusetts, J8gs. 

Colt,  Circuit  Judge.— The  plaintiff  is   the  proprietor    and 
manufacturer  of  a  liquid  laxative  compound   called  <'Syrup  of 
Figs."     The  defendants  manufacture  and  sell  a  laxative  medi- 
cine which  they  term  "Fig  Syrup."     The  defendant  claims  a 
trade-mark   in  the  words,  "Syrup  of  Figs,"  or  "Fig  Syrup," 
.and  seeks  to  enjoin  their  use  by  the  defendants.     There  is  no 
evidence  that  the  defendants  have  imitated  the  plaintiff's  labels 
or  packages  except  in  this  particular.     If  this  preparation  is  in 
fact  a  syrup  of  figs,  the  words  Jire  clearly  descriptive   and  not 
the  proper  subject  of  a  trade-mark.     Upon  this   point  the  con- 
tention of  the  plaintiff  is  that  its  preparation  is  not  a  syrup  of 
figs,  since  it  contains  only  a  very  small  percentage  of  the  juice 
of  the  fig;  that  the  laxative  ingredient  in  it  is  senna;  that  while 
the  fig  in  the  form  of  fruit  may  have  laxative  properties,  arising 
from  "the  seeds  and  skin,  the  fig  in  the  form  of  a  syrup  is  no 
more  laxative  than  any  other  fruit  byrup ;  that  it  follows  from 
these  facts  that  these  words,  as  applied  to  this  compound,  are 
not  descriptive,  but  purely  fanciful,  and,  therefore,  constitute  a 
valid  trade-mark.     The  evidence  shows  that  the   compound  is 
not  a  syrup  of  figs.     It  might  more  properly   be   termed   a 
"syrup  of  senna,"  if  the  words  were  intended  to  be  descriptive 
of  the  article.     But  assuming  this  is  not  a  syrup  of  figs,  we  are 
met  with  the  inquiry  whether  these  words  as  applied  to  this 
preparation    are    not   deceptive.      The    label    on  every   bottle 
reads  as  follows:  "Syrup  of  Figs,  The  California  Liquid  Fruit 
Remedy,  Gentle  and  Effective."     On  the  sides  of  each  bottle 
are  blown  the  words  "Syrup  of  Figs"  and  on  the  back  the 
words  "California  Fig  Syrup  Co.,  San  Francisco,  Cal."     On 
the  face  of  every  package  is  a  picture  of  a  branch  of  a  fig  tree 
with  the  hanging  fruit  surrounded  with  the  words,  "California 
Fig  Syrup,  San  Francisco,  Cal. ;"  and  beneath  this  the  words: 
"Syrup  of  Figs  presents  in  the  most  elegant  form  the  laxative 


jL 


3oS 


MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 


and  nutritious  juice  of  the  figs  of  California."  Thus  vvc  see 
that  the  leading  representation  on  the  labels,  packages,  and  in 
the  advertisements  of  this  preparation  is  that  it  is  a  laxative 
fruit  syrup  made  from  the  juice  of  the  California  fig.  Mr. 
Winslow,  a  witness  for  the  plaintiff,  fairly  expresses  the  public 
idea  of  this  compound  in  reply  to  the  following  question: 
"What  did  you  suppose  'Syrup  of  Figs'  was  composed  of 
when  you  purchased  your  first  bottle.?  A.  I  supposed  it  was 
made  from  the  natural  fruit.     It  called  for  the  fruit." 

The  popularity  of  this  medicine  arises  from  the  belief  in  the 
mind   of  the  ordinary  purchaser  that  he  is  buying  a  laxative 
compound,  the  essential  ingredient  of  which  is  the  California 
fig-  whereas,  in  fact,  he  is  buying  a  medicine,  the  active  prop- 
erty of  which  is  senna.     The  ethical  principle  on  which  the  law 
of  trade-marks  is  based,  will  not  permit  of  any  such  deception. 
It  may  be  true  as  a  scientific  fact  known   to  physicians  and 
pharmacists  that  the  syrup  of  figs  has  little  or  no  laxative  prop- 
erty but  this  is  not  the  belief  of  the  general  public.     They 
purchase  this  preparation  on  the  faith  that  it  is  a  laxative  com- 
pound made  from  the  fruit  of  the  fig,  which  is  false.     This  is 
not  an  immaterial  representation  the  effect  of  which  is  harm- 
less, but  it  is  a  representation  which  goes  to  the  very  essence  of 
the  plaintiff's  right  to  a  trade-mark  in  these  words.     The  cases 
are    numerous   where  the  courts  have  refused  to  grant   relief 
under   these  circumstances.     In  the   leading  case    of  Leather 
Cloth  Co.  V.  American  Leather  Cloth  Co.,  4  De  Gex,  J.  &  S. 
177    142,  144  (affirmed  11  H.  L.  Cas.  523),  which  was  a  suit 
whe're  the  statements  on  the  face  of  the  trade-mark  were  untrue, 
Lord   Chancellor  Westbury  says:     "Where   the    owner   of  a 
trade-mark  applies  for  an  injunction  to   restrain  the  defendant 
from  injuring  his  property  by  making  false  representations  to 
the  public,  it  is  essential  that  the  plaintift  should  not,  in  his 
trade-mark  or  in  the  business  connected  with    it,  be    himself 
guilty  of  any  false  or  misleading  representation  ;  for  if  the  plain- 
tiff makes  any  material  false  statement  in  connection  with  the 
property  he  seeks  to  protect,  he  loses,  and  very  justly,  his  right 
to  claim  the  assistance  of  a  court  of   equity.    ♦    *    *    Where 
any  symbol  or  label  claimed  as  a  trade-mark  is  so  constructed 
or  worded  as  to  make  or  contain  a  distinct   assertion   which  is 
false,  1   think  no  property  can  be  claimed   in   it,  or,  in  other 


ROPERTY. 

Thus  vvc  see 
:kages,  and  in 
t  is  a  laxative 
rnia  tig.  Mr. 
sses  the  public 
(•iug  question : 
composed  of 
ipposed  it  was 
ruit." 

e  belief  in  the 
/ing  a  laxative 
,  the  California 
lie  active  prop- 
n  which  the  law 
such  deception, 
physicians  and 
3  laxative  prop- 
public.     They 
a  laxative  corn- 
false.     This  is 
which  is  harm- 
!  very  essence  of 
irds.     The  cases 
to  grant   relief 
:ase    of  Leather 
)e  Gex,  J.  &  S. 
^hich  was  a  suit 
ark  were  untrue, 
the    owner   of  a 
n   the  defendant 
jpresentations  to 
lould  not,  in  his 
1    it,   be    himself 
I ;  for  if  the  plain- 
nection  with  the 
y  justly,  his  right 
.    ♦    *    •   Where 
is  so  constructed 
ssertion   which  is 
n   it,  or,  in  other 


CALIFORNIA  FIG  SYUUr  CO     V.    PUTNAM. 


309 


words,  the  right  to  the  exclusive  use  of   it  can  not  be  mam- 
t'lined  "     That  case  was  cited  and  approved  by   the  supreme 
court  in  Medicine  Co.  v.  Wood,  loS  U.S.318,  2  Sup.  Ct.  436, 
when  a  trade-mark  was  claimed  in  "Atwood's  Vegetable  Phys- 
ical  Jaundice   Bitters."     The    labels    attached    to    the  bottles 
stated  that  the  medicine  was  manufactured  by  Moses  Atwood, 
of  Geor.retown,  Massachusetts,  whereas,  in  fact,  it  was  manu- 
factured by    another  person  in  New  York.     Mr.  Justice  Field, 
speaking  for  the  court  says,  on  page  223,  loS  U.  S. :    "To  put 
forth  a  statement,  therefore,  in  the  form  of  a  circular  or  label 
attached  to  an  article,  that  it  is  manufactured   in   a  particular 
place,  by  a  person  whose  manufacture  there   had   acquued  a 
great'reputation,  when  in  fact  it  is  manufactured  by  a  different 
person  at  a  different  place,  is  a  fraud  upon  the  public  which  no 
court  of  equity  will  countenance."     In  Clotworthy  v.  Schcpp, 
42  Fed.  62,  63,  the  right  to  a  trade-mark  was  claimed  in  the 
word  "Puddine"  in   connection   with   the  words   "Rose"   and 
"Vanilla."     In  his  opinion  Judge  Lacombe  says:    "The  com- 
plainant hin-..clf  is  engaged  in  deceiving  the  very  public  whom 
he  claims  to  protect  from  the  deception  of  others.     He  calls  his 
preparation  'fruit'  puddine.    In  nine  different  places  on  his  pack- 
age this  word  'fruit'  is  repeated   as  descriptive   of  the   article, 
and  a  dish  of  fruit  (pears,  grapes,  etc.),  is  most  prominently 
depicted  on  one  face  of  each   packet.     His  packages  plamly 
suggest  that  fruit  of  some  kind   enters   in  some   shape  into  his 
compound.     A  chemical  analysis  produced  by  defendant,  the 
substantial  accuracy  of  which  is  not  disputed,  discloses  the  fact 
that  his  "puddine"  is  composed  exclusively  of  corn  starch,  a 
small  amount  of  saccharine    matter,   and  a  flavoring  extract, 
with  a  little  carmine  added  to  give  it  color.     It  contains  no 
fruit  in  any  form.     Under  these   circumstances  complainant's 
rights  are  not  sufficiently  clear  to  warrant  the  granting  of  a  pre- 
liminurv  injunction." 

In  Alden  v.  Gross,  35  Mo.  App.  123,  12S,  130,  a  trade- 
mark was  claimed  in  the  words  "Fruit  Vinegar."  In  that  case 
the  court  says:  "The  vinegar  thus  branded  was  not  manufac- 
tured out  of  fruit  in  the  plain,  ordinary,  usual  sense  of  that 
term,  but  out  of  low  wines  distilled  from  cereals,  and  fruit 
enters  into  its  composition  only  to  a  v«ry  insignificant  extent. 
*    *    •    It  would  be  a  novel  application  of  the  rule  governing 


1 


310      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

the  subject  of  trade-marks  if  one  who  manufactures  vinegar  out 
of  cereals  couid  appropriate  for  the  article  thus   manufactured 
the  word  'Fruit.'  and  thereby  exclude  another   from   usnif?  the 
word  as  descriptive  of  an  article  which  is  in  point  of  fact  man- 
ufacturcd   out  of  fruit.    *    *    *    But  whether  the  -.vord  'frmt 
in  this  connection  is  purely  ind.cative  of  the  character  or  quality 
of  the  article  or  not,  the  plaintiff's  exclusive  claim   to  it  must 
fail  on  the  further  gro.n.'.  that  the  use  of  the  word  ni  that  con- 
nection  is  clearly  deceptive."     In  Connell  v.  Reed,  12S  Mass. 
177    the  plaintiff  sought  to  establish  the  exclusive  right  to  the 
words  "East  Indian"  as  applied  to  his  remedy.     In  that   case 
Chief  Justice  Gray  says:      "The  conclusive  answer  to  this  suit 
is    »    »    »    that   the    plaintiffs  have   adopted  and   used    these 
words  to   denote,    and  to  indicate,  to  the  public  that  the  mcdi- 

^i,,es "^ed  in  the  East  Indies,  and  that  the   formula  for 

tiv  •  .■  ^-'ned  there,  neither  of  which  is   the  fact.     Under 

these    i  .  u..o,ances  to  maintain  this  bill  would  be  to  lend  the 
aid  of  the  court  to  a  scheme  to  defraud  the  public."    In  Siegert 
V    Ai.i,>,tt.  61  ISM.  J76,  2S4,  the  subject-matter  of   the    trade- 
mark  was  ■    -.nRo...ra  Bitters,"  which  purported  to  h.ave  been 
prepared    by  Dr.  c:.legert  at  Angostura,  now   Port  of  Spain 
Trinidad.     In   fact  Dr.  Siegert  was  dead  and  had  never  lived 
at  Port  of  Spain.    In  dismissing  the  bill  the  court  says:    "It  is  a 
general  rule  of  law  in  cases  of  this  kind  that  courts  of  equity 
will  not  interfere  by  injunction  where  there  is  any  lack  of  truth 
in  the  plaintiff's  case  ;  that  is,  where  there  is  any  misrepresenta- 
tion  in  his  trade-mark  or  labels."    In  Seabury  v.  Grosvenor,  14 
Blatchf.  z62,  263,  Fed.  Cas.  No.  12,  576,  the  word  "Capcne 
was  sought  to  be  appropriated  as  a  trade-mark      In  that  case 
Mr     Justice    Blatchford    said:     "A  registered   trade-mark  is 
daimed    in  the  word  'capcine.'     Courts   of    equity   refuse  to 
interfere  in  behalf  of  persons  who  claim   property  ni   a  trade- 
mark, acquired  by  advertising  their  wares  under  such  representa- 
tions as  those  above  cited,  if  they  are  false.     It  is  shown  that 
there  is  no  such  article  as  'capcine'  known  in  chemistry,  or  med- 
icine   or  otherwise.     The  authorities  are  clear  that  in  a  case  of 
this  description  a  plaintiff  loses  his  right  to  claim  the  ass.sta.ice 
of  a  court  of  equity."     In  Krauss  v.  Jas.  R.  Peebles  Sons  Co., 
<S  Fed    =18^,  594,  it  was  shown  that  a  liquor  sold  as  'Pepper 
Whisky'  was  in  fact  a   mixture  of  Pepper  whisky  and  other 


mM 


PROPERTY. 

ires  vinegar  out 

maiiufactured 
rom   usiiiK  the 
It  of  fact  man- 
he  '.vord  'fruit' 
racter  or  quality 
aim   to  it  must 
)rd  in  that  con- 
eed,  1 28  Mass. 
ve  right  to  the 
.     In  that   case 
iwer  to  this  suit 
and   used    these 
ic  that  the  mcdi- 
the   formula  for 
he  fact.     Under 

be  to  lend  the 
)lic."  InSiegert 
;r  of  the  trade- 
ted  to  have  been 

Port  of  Spain, 
1  had  never  lived 
it  says:    "It  is  a 
courts  of  equity 
any  lack  of  truth 
ly  misrepresenta- 
v.  Grosvenor,  14 
word  "Capcine" 
•k.     In  that  case 
ed   trade-mark  is 
equity   refuse  to 
perty  in   a  trade- 
r  such  representa- 

It  is  shown  that 
:hemistry,  ormed- 
r  that  in  a  case  of 
aim  the  assistance 
*eebles'  Sons  Co., 
Dr  sold  as  'Pepper 
whisky  and  other 


CALIFORNIA  KIG  SYRUP  CO.  V.  PUTNAM. 


3»» 


whiskies.     Judge  Taft,  in  his  opinion,  says:     "To  bottle  such 
a  mixture  an.l  sell  it  under  the  trade  label  and  caution  notices 
above  referred  to  is  a  false  representation  and  a  fraud  upon  the 
purchasing  public.     A  court  of  equity  can  not  protect  property 
in  a   trademark    thus   fraudulently   used.     It   is  not   material 
whether  the  foreign  whisky  mixed  with  Pepper's  is  as  good  or 
better  whiskv  than  Pepper's,  or  whether  the  mixture   is  better 
than  pure  Pepper  whisky.     The   public   are   entitled  to  a  true 
s  atement  as  to  the  origin  of  the  whisky,  if  any  statement  .s  made 
.,t   all      The  complainants  and  Pepper  are  not  to  be  protected 
'in  a  deception  of  the  public  even  if  it  works  to   the  acUantage 
of    the   public."     In  Manufacturing  Co.  v.  Bushorc,  b  L.   C. 
,\    2 IS,   59  Fed.   572,  574,  a  trademark  was   claimed    m  the 
words  "One-Night  Cough  Cure."     In  the  opinion  of  the  court 
Mr.  Justice  Shiras  says:      '  In  the  present  case   the  so-called 
trade-mark,  'One-Night  Cough  Cure'  asserts  a  manifest  false- 
hood or  physiological  impossibility.     A  cough  or  cold  so  far 
seated   as  to   require  treatment,  can  not  be  cured   m  a  smgle 
night,  and  a  pretense  to  tlie  contrary  is  obviously  an  imposition 

on  the  ignorant."  ,,        ,  • 

In   Fetridge  v.  Wells.  13  How.  Pr.  3S5,  390,  393'  the  plam- 
tiff  sold  a  soap  under  the  name  of  "Balm  of  Thousand   Flow- 
ers "     In  denying  the  plaintiff's  right  to  the  exclusive  use  of 
these  words  as  a  trade-mark,  Judge  Duer  says:      "I  am  fully 
convinced  that  the  name   "Balm  of  Thousand   Flowers'     was 
invented,  and  is  now  used,  to  convey  to  the  minds  of  purchasers 
the  assurance  that  the  highly  scented  liquid  to  which  the  name 
is  given  is,  in  truth,  an  extract  or  distillation  from  flowers,  and, 
therefore,  not  merely  an  innocent  but  a  pleasant  and  salutary 
preparation.     Not  only  is  this  the  meaning  that  the  words  used 
naturally   suggest,  but  in  my   opinion   it  is   that   which    they 
actually  and^  plainly  express,  and  were  designed   to   convey. 
•    *    »    Let  it  not  be  said  that  it  is  of  little  consequence  whether 
this  representation  be  true  or  false.     No  representation  can  be 
more  material  than  that  of  the  ingredients  of  a  compound  which 
is  recommended  and  sold  as  a  medicine.     There  is  none  that  ,s 
so  likely  to  induce  confidence  in  the  application  and  use  of  the 
compound,  and  none  that,  when  false,  will  more  probably  be 
attended  with  injurious,  and  perhaps  fatal,  consequences.        In 
Schmidt   V.    Brieg,    100    Cal.    672,    67S,    35    Pac.    623,    the 


3  I  2       MODES  OF   OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

supreme  court  of  California,  in  a  case  vvhere  a  t^de-mark  was 
chLed   in  the  words  uSarsaparllla  and  I'on,"  says:        W 
think  the  words  'Sarsaparilla  and  Iron'   are  genenc  t  ims  jd 
were  used  for  the  purpose  of  indicating  not  so  much  the  o    gm 
n^anufacture,  or  ownership  of  the  beverage,  as  the   qu  hty  of 
the   article   itself.    *    •    *    The  words  'Sarsapardla   and  Iro- 
describe  ingredients  well  known  to  the  r-'bl'C  «"t  it 

is   claimed    by   respondents  (plaintiffs  be...)  that  the  words 
4ar  aparillaLd  Iron'  do  not  in  fact  indicate   the   charac^r 
kind,  or  quality  of  their  beverage;  that  it  is  not   a  compos, ton 
of  sarsaparilla  and  iron,  but  a   solution  of  various  subs  ance 
that   it    contains    only    a   small    quantity   of   sarsapardla  and 
a    very    small    quantity    of    iron,    and  the   name    was    given 
to  the  beverage  only  as  a  name  by  which  it  might  be  known 
without  in    any  Jy   being   descriptive;    but    it    is    suffi.er. 
to  sny  in  answer  to  this  claim  that  the  name  given  to  the  article 
is  eiUier  generic,  or  it  is  of  such  a  character  that  it  ^^^--^-'f 
be  applied  to  defendant's  beverage  as  to  the  plaintiff  s.        In 
Phalon  V.  Wright,  5  Phila.  467,  the  subject  of  the  trademark 
Ta    "Extract  of  Nrght-Blooming  Cereus."     In  that  case  the 
court  says:      "They  (the  plaintiffs)  admit  that  t^e  name  is  a 
deception  as  far  as  it  is  used  to  indicate  the  real  character  of 
the  compound;  that  the  perfume  is  no  extract  from  the  flower, 
and  that   the  trademark   is  in   that  respect  a  pure  invention 
The  'Night-Blooming  Cereus',  however,  exists,  a  flower  well 
known  by  that  name,  which,  when   first  introduced  to  public 
notice,  excited  much  attention.     An  extract  rnay  be  made  from 
that  flower,  any  perfumer  has  the  right  to  make  such  an  exti. 
and  to  call  it  what  it  is,  by  the  name  of  the  flower.      In  1  nnce 
Manufacturing  Co.  v.  Prince's  Metallic  Paint  Co     135  N.  Y 
2.    c,8   ^Q   c,i  N.  E.  990,  the  New  York  court  of  appeals,  m 
dtving'the'^ightto  a  trade-mark  in  the  words  ''Prince's  Metal- 
lic Paint"  by  reason  of  a  false  representation   as  to  the  place 
from  which  the  ore  was  obtained,  says:     "Any  material  mis- 
representation in  a  label  or  trade-mark  as  to  the  person  by  whom 
the  article  is  manufactured,  or  as  to  the  place  where   manufac- 
tured,  or  as  to  the  materials  composing  it,  or  any  other  material 
false  representation,  deprives  the  party  of  the  right  to  relief  m 
equity.     The  courts  do  not  in  such  cases  take  into  consideration 
the  attitude  of  the  defendant,    *    *    •    and  although  the  false 


PUOPERTV. 

;raclc-mark  was 
"  says:      "We 
eric  terms  and 
tiuch  the  origin, 
the   quality  of 
irilla   and  Iron' 
•    *    *    But  it 
that  the  words 
the   character, 
a  composition 
ous  substances; 
sarsaparilla  and 
ime    was    given 
night  be  known 
it    is    sufficient 
/en  to  the  article 
It  it  can  as  well 
plaintiff's."     In 
:  the  trade-mark 
In  that  case  the 
t  the  name  is  a 
real  character  of 
from  the  flower, 
L  pure  invention, 
ts,  a  flower  well 
)duced  to  public 
lay  be  made  from 
ce  such  an  extract 
Dwer."    In  Prince 
tCo.,  135  N.  Y. 
,rt  of  appeals,  in 
;  "Prince's  Metal- 
i   as  to  the  place 
,ny  material  mis' 
le  person  by  whom 
where   manufac- 
any  other  material 
;  right  to  relief  in 
!  into  considcratio^n 
although  the  false 


HOXIE  V.  CHANEV;  CHANEY  V.  HOXIE. 


3»3 


arH  le  is  as  good  as  the  true  one,  the  privilege  of  deceiving  the 
public,  even  for  their  own  benefit,  is  not  a  legitimate  subject  of 

"""^rplaintiff  relies  on  the  decisions  of  the  circuit  court  for 
the   northern  district   of   California,  and    the  c.rcu.t  court  of 
'appeals  for  the  ninth  circuit,  in  a  case  brougl.t  by  .t  agan.t  the 
Improved  Fig  Syrup  Company  (31  Fed.  296,  and  4  C.  C.  A 
.Zlx  Fed     175).     That  case,  however,  was  only  heard  on 
mo'aol'for  preliLYnary  injunction;   it  also  P---a  ^  ^.^eren 
state  of  facts.     Under  these  circumstances  .t  can  not  be  con 
Sired  as  a  binding  authority  in  this  case.     Conso bdate^Fj^ 
Jar  Co.  V.  Bellaire  Stamping  Co.,  27  Fed.  377,  3S2  ,  Aud  «« 
V   Redfield,4o7,  4^5,  Fed.  Cas.  No.  367;  ^  H.gh,In3.  [3Ld.], 
sec   5      Bill  dismissed  with  costs. 

Co.,93Tenn.  84. 


§  60.  Same-Assignabilityoftrade-mark-Saleof goodwill. 

HOXIE  V.  CHANEY. 
CHANEY  V.  HOXIE. 

[143  Mass.  592;  S8  Am.  Rep.  549-3 
Supreme  Judicial  Court  of  Massachusetts,  1887. 

Allfn  T  -The  first  of  these  cases  in  the  order  of  time  is 
the  bill  in' equity  brought  by  Hoxie  against  Chaney  and  Pegram 
inlTh^Uhev  may  be  restrained  from  the  use  of  the  name 
^"Y^rd  A  N  Hoxie's  Mineral  Soap"  and  "A.  N.  Hoxie's 
plreSoap  mLLuredbyA.N.  Hoxie,  agent,"  which 
ns  he  alleges,  constitute  a  trade-mark,  and  from  the  use  of  m 
name  in  thei    business.     The  decree  was  to  the  effect  that  the 

rendLs  have  the  sole  and  exclusive  right  t-.se   the  trad 
marks    "A.  N.  Hoxie's  Mineral  Soap"    and   "A.   N.   Hox.es 
plt'e  Soap,"  but  have  no  right  to  use  words  importmg  that 


314       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPEIITY. 

the  soaps  are  made  by  Iloxic  personally  or  as  agent,  and  have 
no  richt  to  use  the  name  of  Hoxie  in  their  business.  From  this 
decree  Iloxic  -.ppealed  to  this  court,  but  the  defendants  did  not 
nnneal,  and  therefore  no  question  arises  in  this  case  except  as  to 
so  much  of  the  decree  as  was  unfavorable  to  Hcxie,  namely, 
that  the  defendants  have  the  sole  and  exclusive  right  to  use  the 

trade-marks.  , 

It  is  conceded  by  both  sides  that  these  words  taken  together 
constituted  a  trademark,  but   Hoxie  contends  the  tjse   of  Im 
nime  in  the  connection  in  which  it  occurs,   makes   them  both 
trade-marks,  which  are  personal  to  himself  and  wh.ch  can  not 
be  assi<.ncd.     There  may  no  doubt  be  cases  where  the  personal 
skill  of"an  artist  or  artisan  may  so  far  enter  into  the  value  of  a 
product,  that  a  trade-mark  bearing  his  name  would,  or  at  least 
aii-ht,  imply  that  his  personal   work  or  supervision  ^yas   em- 
pUrvcd  in  the  manufacture;  and   in   such  cases  ,t  would  be^  a 
frai'id  upon  the  public  if  the  trade-mark  should  be  used  by  other 
persons,  and  for  this  reason  such  a  trade-mark  would  be  held  to 
be  unassignable.     It  is  in  any  case  a  question  whether  the  use 
of  the  trade-mark  would  give  to  the  public  or  to  purchasers  a 
false  idea  as  to  who  made  the   article;    and   a   court  of   equity 
would  not  lend  any  active  aid  to  sustain  a  claim  to  a  trade-mark 
which  should  contain  a  misrepresentation  to  the  public.     Con- 
nell  V.  Reed,  128  Mass.  477  S  «•  «="  35  Am.  Rep.  397  ^  Manhat- 
tan  Medicine  Co.  v.  Wood,  loS  U.  S.  218.     But  on  the  other 
hand,  the  usages  of  trade  may  be  such  that  no  such  inference 
would  naturally  be  drawn  from  the  use  of  a  trade-mark  which 
contains  a  person's  name,  and  that  all   that  purchasers  would 
reasonably  understand  is  that  goods  bearing  the  trade-mark  are 
of  a  certain  st.indard,  kind,  or  quantity,  or  are  made  in  a  cer- 
tain manner  or  after  a  certain  formula,  by  persons  who  are  c.-ji- 
rving  on  the  same  business  that  formerly  was  carried  on  by  the 
person  whose  name  is  in  the  trade-mark.     In  the  present  case 
the  decree  shows  that  the  court  found  that  the  use  of  the  trade- 
marks now  in  question  does   not  import  that  the  soaps  were 
made  by  Hoxie  personally,   but  merely  that  they  were  made 
according  to  his  formulas;  and  this  finding  appears  to  be  righ  . 
In  Kidd  V.  Johnson,  100  U.   S.  616,   the  trade-mark     "S.N. 
Pike's  Magnolia  Whisky,"    was  held  to  be  assignable.     See, 
also    Warren  v.  Warren  Thread  Co.,  134  Mass.  247 ;  Sohier  v. 


L  PROPEIITY. 

agent,  and  have 
iness.  From  this 
efenilants  did  not 
i  case  except  as  to 
Hcxie,  namely, 
2  right  to  use  the 

Js  taken  together 
Is  the  use   of  his 
nakes   them  both 
id  which  can  not 
k^here  the  personal 
to  the  value  of  a 
vould,  or  at  least 
ervision  was   ern- 
es it  would  be    a 
d  be  used  by  other 
k  would  be  held  to 
1  whether  the  use 
)r  to  purchasers  a 
a   court  of   equity 
im  to  a  trade-mark 
the  public.     Con- 
llep.  397 ;  Manhat- 
But  on  the  other 
no  such  inference 
trade-mark  which 
purchasers  would 
the  trade-mark  are 
ne  made  in  a  ccr- 
ersons  who  are  car- 
s  carried  on  by  the 
:n  the  present  case 
le  use  of  the  trade- 
lat  the  soaps  were 
!it  they  were  made 
appears  to  be  right, 
rade-mark,    "S.   N. 
e  assignable.     See, 
ilass.  247 ;  Sohier  v. 


IIOXIK  V.  ClIANKV  ;  CHANKY  V.   IIOXIE. 


3'5 


Johnson,  in  Mass.  23S ;  Leather  Cloth  Co.  v.  American 
Leather  Cloth  Co.,  i.  II.  L.  Cas.  523;  ll>«n  -  Harrows,  4  Do 
(  ..,  J.  &  S.  150;  Hurg  V.  Bedford,  4  l^e  G.,  J.  &  S.  3^2,  369, 

^^These  trade-marks  became  a  part  of  the  partnership  property 
under  the  agreement  entered  into  by   Iloxie  and  Pegram,   and 
passed  to  l>cgram  by  the  bill  of  sale  executed  by  Hox>e  to  hnn 
Bv  the  agreement  Iloxie  in  terms  contributed  the  good  w.ll  of 
tl.;  business  which  he  was  carrying  on   with  the  tools,   .mple- 
,nents,  and  fixtures.    A  continuation  of  his  business  was  plamly 
contemplated;  and  in  point  of  fact  the   trade-marks  were  tjsed 
bv  the  firm  during  the  whole   continuance  of  the   partnership 
T'he  bill  of  sale  is    not  controlled    in    its   terns   by    any   facts 
proved.     There  were  negotiations  looking  to  a  transfer  to  Iloxie 
\i  his  interest  in  the  partnership,   at   the  close   of  the  ensu.ng 
fishing  season  ;  but  nothing  was  arrived  at.     Hox.e  had  violated 
the  terms  of  the   partnership   agreement  in   several  important 
particulars,  which  naturally  led  to  Pegram's  insisting  on  a  dis- 
solution.    Under  these  circumstances  the  bill  of  sale  was  signed 
with  no  agreement,  either  written  or  oral    to   take   Iloxie  back 
as  a  member  of  the  firm.    By  it  Hoxie  sold  to  Pegram  -the  fol- 
lowing  goods  and  chattels,  namely:     All  my  right,  title,   and 
interest  in  and   to   all    and    singular    the    partnership    property 
belonging  to  the  firm  of  A.  N.  Iloxie  &  Co.  (consisting  of  A 
N    Hoxie  and  Frank  R.  Pegram),  meaning  hereby  to  sell  and 
convey  to  said  Pegram  all  my  interest   in  the  entire   assets  of 
said  firm  wherever  the  same  may  be  situated."     These  terms 
are  broad,  and  although  the  trade-marks  and  good  will  of  the 
firm  are  not  expressly  mentioned,  both  are  included  within  is 
meaning.     Sohier  v.  Johnson,  m   Mass.    243,   243;    2   LincU. 
p.„t    [4  Ed.],  S60,  861,  1046;  Shipwright  V.  Clements,  19  W. 
R    ^00.     Pegram,  therefore,  became  the  owner  ot  the   trade- 
marks and  his  firm  of  Chaney  &  Pegram  are   now  entitled  to 

their  exclusive  use. 

The  decree  of  the  court  in  this  case  is  affirmed. 

Decree  affirmed. 

The  second  of  these  cases  is  the  bill  inequity  brought  by 
Chaney  &  Pegram  against  Hoxie,  and  it  proceeds  on  the  ground 
that  the  exclusive  right  to  use  the  trade-marks  had  become  of 
great  value;  that  by  the  agreement  of  partnership  with  Hoxie 


3l6      MODES  CV  OBTAINING  TITLE  TO  PERSONAL  PHOfKUTV. 

and  the  bill  of  sale  from  Iloxie,  Pegrain  had  become  the  owner 
of  them,  with  the  good  will  of  the  business;  that  lloxie  has  now 
opened    a  soap  factory   and   is   manufacturing  the  two   kinds 
of  soap,  and  is  putting  them  up  in  wrappers  bearing  the  trade- 
marks, and  has  issued  circulars  and   cards,    using  and    avad- 
ing  himself  of  the  trade-marks.    The  prayer  is  for  an  injunction 
to    restrain   Hoxie    from   making    and    selling   two    kinds    of 
soap,    from    using    the     wrappers    bearing    the    trade-marks, 
and  from  doing  other  acts  tending  to   injure  a.id   impair  the 
good    will    of    the    business.       The    decree,     after    allirming 
Chaney   &    Pegram's   ownership   of  the    trade-marks,  was  in 
substance  that  Hoxie  ought  not  to  interfere  with,   or  compete 
whh,  them  in  the  business  of  making  or  selling  mineral  or  pum- 
ice soap  in  Boston,  and  ought  to  be  enjoined   from  using  the 
trade-marks,  or  any  imitations  thereof,  and  also  from  competing 
with  and  from  endeavoring  to  disturb  or  interrupt  the  business 
of   said    Chaney    &   Pegram  in  the   manufacture  and  sale   of 
said  soaps;  and  that  injunctions  should  issue  accordingly. 

So  far  as  the  ownership  and  use  of  the  trade-marks  arc  con- 
cerned  the  decree   should  be    atfirmed.     But   in  reference    to 
what  is  involved  in  the  transfer  of  the  good  will  of  the  business 
it  requires  oome  modification.     Neither  the  agreement  of  part- 
nership between  Iloxie  and  Pegram,  nor  the  bill  of  sale  from 
Hoxie   to  Pegram  contained  any   agreement  that  Hoxie,  upon 
the  dissolution  of  the  firm,  should  not  carry  on  a  similar  busi- 
ness, further  than  is  implied  by  the  transfer  of  the  good  will, 
pure  and  simple.     The  general  rule  in   this  commonwealth  as 
applicable  to  the  sale  of  stock  in  trade  in  a  particular  store  and 
of  the  good  will  of  the  vendor's  trade  and   all  the   advantages 
connected  with  such  place  of  business,  is  that  such  a  sale  does 
not  impart  an  agreement  by  the  vendor  not  to  engage  again  in 
a  similar  business  in  some  other  places  at  a  subsequent   time. 
Bassett   v.    Percival,    5    Allen,    345,     347-     The    court    say: 
"Whenever  such  is  the  intent  of  the  parties  it  is  carried  into 
effect  by  an  express  stipulation  which  if  not  in  undue  restraint 
of  trade  may  be  valid   and  binding.     But   we  know  no  case 
where  any  such  agreement  has  been  raised  by  mere  implication 
arising  from  the  sale  of  the  good  will   of  a  person's   trade  in 
connection  with  a  particular  place  of  business   where  it  has 
been  carried  on.     There  may  be  cases  and  circumstances  where 


^H 


r 


PnOPKUTV. 

come  the  owner 
t  lloxic  lias  now 

the  two  kinds 
■arinK  the  traile- 
sinpj  and  avail- 
for  an  injunction 
r  two  kinds  of 
le  trade-marks, 
and   impair  the 

after  alhvm  in<4 
>marks,  was  in 
ith,   or  compete 

mineral  orpum- 

from  using  the 

I  from  competing 
upt  the  business 
;ure  and  sale  of 
ccordingly. 
c-marks  arc  con- 
in  reference    to 

II  of  the  business 
2freement  of  part- 
bill  of  sale  from 
that  Hoxie,  upon 
)n  a  similar  busi- 
)f  the  good  will, 
ommonwealth  as 
rticular  store  and 
I  the  advantages 
t  such  a  sale  does 
)  engage  again  in 
subsequent   time. 

The  court  say : 
it  is  carried  into 
ii  undue  restraint 
ve  know  no  case 
mere  implication 
person's  trade  in 
less  where  it  has 
cumstances  where 


IIOXIK  V.  CII\NEY;  CHANKY  v.   HOXIK. 


,V7 


it  will  be  ditVicult  to  tell  just  how  much   is  inchulcd  m  a  sa  o 
nierely  of  the  go<.d  will  of  a  business.     Such  dil1icult.es  might 
exist  where  the  business  is  not  local   in   its  character,  but  ex- 
tends  over  a  considerable   region    or   line    of   travel,   as,    for 
example,  in  the  case  of  a  carrier,  an  express  company,  a  can- 
vassing  agency,  or  a  newspaper.      »ut   it   is  not  necessary  at 
•his  time  to  enter  upon  the  consideration  of  such  cases.     In  the 
.resent  time  there  is  n-.thing  in  the  averments  or  proof  to  show 
'that  the  business  of  Chaney   and  Pegram   was   carried   on  by 
means  of  traveling  agencies  or  that  Hoxie  has  directly  or  per- 
suually   solicited  customers  of    Chaney  and  I'egram  to   leave 
them  and  to  buy  of  him;  and  the  case  falls  with-   :he  doctrine 
of  Bassett  v.  Percival,  above  cited. 

It  is  proper  to  refer  to  the  distinction  which  exists  between 
11  issett   v.    Percival    and    several   later   cases.     In    Angicr  v. 
Webber,  14  Allen,  211,  arising  about  four  years  later,  in  which 
the  opinion  of  the  court  was  delivered  by  Chief  Justice  Bigelow, 
who  also  delivered  the  opinion  in  Bassett  v.  Percival,  the  sale 
WIS  of  the  pood  will   of  a  teaming   business    in    Boston    and 
between  Boston  and  Somerville,   with  a  special   agreement   not 
in  any  manner  to  do  anything  which  should  in  any  wise  impa:r 
or  injure  the   good  will.     This  was  a  business  which  was  done 
on  the  road   and  all  along  the  line   between   two    cities.     In 
Dwight  V.  Hamilton,  113  Mass.  175,  the  defendant's  "practice 
and  good  wid   as  a  physician"  was  sold,  with   the   land   and 
buildings  where  he  lived,  and  from  the  nature  of  the  good  will 
and  practice  of  a  physician,  the   case  was  said  to  b-  clearly  dis- 
tinguishable from  Bassett  v.  Percival,  and  to  resemble  Ang.er 
V    Webber.     In  Munsey  v.  Butterfield,    133    Mass.  493,  the 
plaintiff  agreed  to  sell  certain  articles  of  personal  property  used 
in  the  milk  business,    "also  the   good-will   of    said  Munsey's 
milk  route,  lying  in  West  Somerville,  East  Somerville,  ^orth 
Somerville  and  Charlestown  ;"  and  before  completing  the  trans- 
action the  plaintiff  bargained  with   another   person    to  buy  a 
milk  route  which  ran  over  a  portion  of  the   same  territory  m 
Charlestown  and  Somerville  as  the  route  which  he  had  sold  to 
the  defendant;  and  the  defendant  having  refused  to  complete 
the   purchase,   this  was   held  to  fall  within  the   same  rule   as 
Angier  v.  Webber  and  Dwight  v.  Hamilton.     All  of   these 
latter  cases  rest  upon  the  peculiar  character  oi  the  good  will 


3  I  S      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PIIOPERTY. 

which  was  the  subject  of  sale,  and  neither  of  them  in  the 
matter  decided  disturbs  the  decision  in  Bassett  v.  Percival 
which  also  is  in  accord  with  most  of  the  recent  decisions  else- 
where, so  far  as  they  have  come  under  our  obseryat-.uir^  See 
Pearson  v.  Pearson,  2^  Ch.  D.  145,  where  the  late  English 
decisions  arc  reviewed.  Cottrell  v.  Babcock  Printing  Press 
Co.,  54  Conn.  122  ;   2  Lindl.  Part.  S59  ct  scq. 

In  the  circular  headed  "Special  Notice  to  the  Wholesale  and 
Retail  Trade,"  Hoxie  virtually  represented  himself  as  the  sue- 
cessor  to  the  business  the  good  will  of  which  he  had  sold,  and 
also  asserted  a  right  to  the  trademark.  This  was  in  excess  of 
what  he   could    lawfully   do.     Churton    v.    Douglas,    Johns. 

^Tnsomtch  as  there  is  nothing  in  the  averments  or  proof  which 
shows  p.ay  undue  or  unlawful  interference  or  competition  on  the 
part  of  Hoxie  except  in  respect  to  the  use  of  the  trade-mark  on 
wrappers  and  in  circulars  and  otherwise,  and  the  virtual  repre- 
sentation  of  himself  as  the  successor  to  the  business  of  the  old 
firm  the  decree  in  the  second  case  should  be  modified,  by 
inserting  a  specification  that  he  is  not  to  interfere  or  compete 
with  the  business  of  Chaney  and  Pegram  "by  representing 
himself  either  directly  or  by  implication  as  the  successor  of  the 
late  firm,  or  as  doing  the  same  business  that  was  done  bj 
them;"  and  the  decree  is  aftirmed  in  respect  to  the  use  of  the 

trade-marks  and  in  other  respects. 

Decree  accordingly 

Consult-As  to  assignability  of  trade-mark,  Welthaus  v.  Braun,  4 

'"as^S'sTic^";-  gt'ci  ttu.  Morgan  v.  Rogers.  19  Fed.  Rep.  566,  Mer, 
V.  Ho  pes,  III  n' Y.  4x5;  Hazard  v.Cas..ll  9..  N.  ^-59,  45  Am  Rep 
I78;  Mye^s  V.  Kalamazoo  Buggy  Co.,  54  Mich.  21,  52  Am.  Rep.  8n. 


RSONAL  PIIOPERTY. 


MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY.       3  I9 


either  of  them  in  the 
in  Bassett  v.  Percival 
le  recent  decisions  else- 
our  observat'.un.  See 
Adhere  the  late  English 
Jabcock  Printing  Press 
I  et  seq. 

:e  to  the  Wholesale  and 
nted  himself  as  the  suc- 
which  he  had  sold,  and 
.  This  was  in  excess  of 
,n    V.    Douglas,    Johns. 

verments  or  proof  which 
ce  or  competition  on  the 
use  of  the  trade-mark  on 
e,  and  the  virtual  repre- 
(  the  business  of   the  old 
should   be   modified,   by 
to  interfere  or  compete 
egram   "by  representing 
n  as  the  successor  of  the 
iness    that  was  done  by 
I  respect  to  the  use  of  the 

Decree  accordingly. 
Tiark,  Welthaus  v.  Braun,  44 

;rs,  19  Fed.  Rep.  566;  Merry 
ill,  93  N.  Y.  259,  45  Am.  Rep. 
[ich.  21,  52  Am.  Rep.  8n. 


II.     BY  ACT  OF  THE  LAW. 

§  61.    Title  acquired  by  judgment. 

SMITH  V.  SMITH. 

[51  N.  H.  S7I.] 
Supreme  Judicial  Court  of  New  Hampshire,  1872. 

Ladd,  J.— The  agreed  statement  of  facts  upon  which  the 
former  opinion  in  this  case  was  rendered  (50  N.  H.  3 13), 
showed  that  after  this  plaintiff  had  paid  the  judgment  recovered 
a-ainst  him  for  the  original  taking  of  the  post,  etc.,  this  defend- 
ant  entered  upon  the  plaintiffs  premises  and  carried  them  away 
again  The  defendant  now  offers  to  prove  that  his  takmg  was 
^./br.  that  judgment  was  paid,  though  after  it  was  rendered; 
.nd  we  are  called  on  to  decide  that  the  plaintiff  can  not  recover 
the  value  of  the  ,-.-,erty  which  he  thus  paid  for  in  paying  tha 
judgment,  because  V.  was  taken  from  him  by  the  defendant 
before  instead  of  after  the  payment. 

The  defendant's  position,  in  a  word,  is  this:  he  had  changed 
his  security  for  the  conversion  of  the  property  from  an  unliqui- 
dated  claim  for  damages  for  a  tort  into  a  judgment  for  its  value. 
Without  releasing  or  surrendering  that  judgment,  he  broke 
and  entered  the  plaintiff's  close  and  took  away  the  property 
for  which  he  held  the  judgment;  and  having  thus  secured  the 
property,  he  enforced  payment  for  its  value  by  collecting  the 
udgment.  He  now  claims  that  he  is  not  liable  for  its  value  in 
this  action,  because  the  property  did  not  pass  to  the  defendant 
until  the  judgment  was  paid,  that  is,  after  his  taking. 

If  there  were  no  other  way  of  meeting  this  position,  it  would 
doubtless  furnish  a  strong  argument  in  favor  of  the  former 
doctrine,  that  it  is  the  judgment  and  not  the  satisiaction  which 
passes  the  property.  Adams  v.  Broughton,  3  Stra.  1078 ;  and 
see  cases  collected  in  Buckland  v.  Johnson,  15  C.  B.  i4d- 
Such  is  not  the  law,  however,  in  this  state.  Hyde  v.  ^oble  13 
N  H.494.  And  probably  not  now  in  England.  Brimsmeadv. 
Harrison,  Law  Reps.  6  C.  P.  5S4;  §.  C,  Law  Rep.  7  C  P. 
547.    And  the  aid  of  no  sych  doctrines  need  be  invoked. 


320      MODES  or  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

In  the  former  opinion  it  was  said  that  a  satisfaction  of  the 
That  remark  was  not  strictly  called  for  as  the  case  then  stood  ; 

di"  tly  rised  and  distinctly  decided  by  tl>e  '=°«'-  J";    ;■ 

,re  so  mucli  in  point  that  1  qnote  a  portion  of  them,     ""'"y^- 
"It  ITbe  borne  in  n,ind  that  the  plaintiff,  m  an  aCon  o 
It  must        DO  1^  ^„„^  „  purchaser  against 

trover,  compels  the  detendant  t  consider  the 

his  will;  and  from  what  period  does  he  <=l«'-"° 
defendant  as  a  P"f-- "^^^ r^e    1    e'rioltsion  as 

rmIvaU,eofthe.oj^.ya.tb.peri.,^^^^^^^^^^ 

::e,uitabipri„^les-.a.eW..oi.c„m^^^^^ 

JnflfT  1X::«  J:  ^.tpert,  .  .He   post,  etc     pa^^ 
CiriU°;rrl;:ir;e1:n:She  is  Clearly 

eLtled  to  recover  their  val«  '"  ^^  J-"';  may  -t  be   cases 
We  do  not   undertake   to    say  tnai   uici  j  ..  ^.  ;^ 

^Zl  this  doctrine  would  not  apply.     AH  we  dec.de  is,  that  U 
does  apply  in  a  case  like  the  present. 

T        •   vv  Murray   ,\Vall.i ;  United  Society  v.  Underwood, 

CoNsuLT-Love]oyv.Murraj,3Vva       ,  Atwater  v. 

„  Bush.  .65.  .1  Am.  ^^P-  -4^  BeU  v.  Pe  r  ,  43  I^^^^3^^  -  ^^^^^^^^.  ^^ 

Tupper,  45  Conn.  144,  ^9  A-"-  ^.^P.Y^-^'.j^,  follow  ng  ways:      By  pay- 
act  of  the  law  may  also  be  acqu.red  .n  the  follow^^  ^^^     ^     ^  3^ 

ment(see  Hagerstown  Bank  v.  Ad^- ^^^^^^^^^^^^  ^^    '^    ^^^^^^    ^^^^,  ^^ 
Am.  Dec.  499)  ;  "^.v  «"-'-"7  ^f/^f ^'f,  :,:uon  oi  revenue  laws, fail- 
forfeiture  by  the  g«-—,,:;^     'Recession  and  by  marriage, 
ure  to  pay  taxes,  etc.,  by  escneai,  uj 


PROPERTY. 


MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY.        32  1 


:isfaction  of  the 
the  property  to 
the  conversion, 
case  then  stood ; 
y  meets  the  case 
S ;   I  Hilliard  on 
iburn  V.  Sewell, 
se  the  point  was 
court.     The  re- 
it  of  the   cor.rt, 
hem.     He  says : 
;,  in  an  action  of 
urchaser   against 

to   consider  the 
lim  for  the  vaUie 

of  conversion  as 
md  claims  from 
,  with  interest  to 
ate  right  of  the 
)e  considered  as 
i  right  being  con- 
e,  must,  on  legal 
nmencement." 

for  if,  upon  pay- 
posts,  etc.,  passed 
eupon  took  effect 
ion,  he  is  clearly 
uit. 

may  not  be  cases 
e  decide  is,  that  it 


locietyv.  Underwood, 
la.  368;  Atwater  v. 
personal  property  by 
ing  ways;  By  pay- 
,.,  45  Pa.  St.  419,  84 
le,  I  Wall.  223);  by 
of  revenue  laws,  fail- 
id  by  marriago. 


III.     BY  ACT  OF  THE  PARTIES. 

(a)    by    GIFT. 

§  62     Gifts  inter  vivos. 

WING  V.  MERCHANT. 

[57  Me.  383.] 
Supreme  Judicial  Court  of  Maine,  i86g. 

Assumpsit  by  the  executor  of  Timothy  Woodward,  deceased, 
to  recover  $200  left  with  defendant,  for  investment,  by  deceased. 
Defendant  claimed  that  the  money  was  the  property  of  his  wife, 
the  daughter  of  the  deceased,  under  a  gift  to  her  by  her  father 
about  three  years  before  his  decease.     There  was  evidence  that 
in  1862  Timothy  Woodward  left  with  his  daughter,  Mrs.  Mer- 
chant, some  notes  payable  to  himself,  amounting  to  about  $200, 
for  safe-keeping.     She  collected  interest,    and    let   her   father 
have  money,  as  he  called  for  it,  until  about  three  years  before 
he  died,  when,  as  she  testified,  "my  father  gave  the  money  to 
me.     He  said  he  did  not  think  thir.  would  be  any  help   to  my 
insane  sister,  Mary,  if  he  should  save  it  for  her  support,  and  I 
had  done  more  for  him  than  all  the  rest  of   his  children,   and 
stayed  with  him  longer,  and  he  gave  it  to  me.     There  was  no 
one  present  when  the  notes  were  given  to  me.     He  was  at  my 
house  at  the  time,  in  the  sitting-room.     The  notes  were  at  the 
time  in  a  box  in  a  chest,  and  the  chest   in    my   sleeping-room. 
Do  not  know  as  father  did  anything  at  the  time  any  more  than 
to  tell  me  that  he  gave  them  to  me  for  my  labor,   and   what  I 
had  done  for  him."     After  the  notes  were  given  to  Mrs.  Mer- 
chant, her  sister,  becoming  insane,  was  supported  at  the  insane 
hospital,  and  the  money  from  the  notes  was  paid  by  Mrs.  Mer- 
chant for  her  support. 

Barrows,  J.— The  circumstances  which  oblige  us  in  some 
cases  to  look  with  suspicion  upon  a  defense  which  asserts  that 
property  claimed  by  an  executor  or  administrator  in  his  represent- 
21 


122 


MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 


ative  capacity,  has  passed  by  a  gift  from  the  deceased  to  one  of 
his  heirs,  are'  not  found  in  the  case    at  bar.     The   defendant, 
with  the  consent  of  his  wife,  to  whom  it  is  claimed  the  property 
was  <riven,  has  appropriated  it  aheady  for  the  benefit  wnd  sup- 
port of  an  insane  sister  of  the  wife,  a  daughter  of  the  deceased, 
uid  he  is  indemnified  against  ultimate  liability  in  this  suit.    The 
iestimony  comes  free  from  selfish  bias;  and  the  naked  question 
is   whether  enough  was  said  and  done  by  Timothy  Woodward, 
the  plaintiff's  testator,  to  constitute  a  valid  gift.     The  money 
and  notes,  amounting  to  about  $200,  had  been  placed  by  the 
testator,    several  years  before  his  death,   in  the  hands  of  the 
defendant    for    safe-keeping;     and     for     some     tune      subse- 
quently   he   was    accustomed    to    call  on    the    defendant   and 
his  wife  for  such  little  sums  as  he  wanted  on  account  of  them, 
and  the  defendant  kept  an  account  of  what  was  thus  repaid. 
The  wife  personally  had  the  charge  of  the  notes  and  kept  them 
in  a  boK,  which  was  placed  in  a  chest  in  her  sleeping-room,  and 
she  seems  to  have  made  most  of   the    small    payments   to    her 
father   which  he  called  for.     While  the  matter  stood  thus,  three 
or  four  vears  before  the  testator's  death,  as  Mrs.  Merchant,  the 
defendant's  wife,  testifies,   he  said,   in   conversation   with  her 
about  the  money  represented  by  these  notes,  that  she  had  done 
more  for  him  than  all  the  rest  of  his  children;  had  stayed  with 
him  longer;  and  that  he  gave  it  to  her.     The   notes   were   then 
in  the  box  in  her  sleeping-room.    They  were  not  indorsed ;  they 
were  payable  to  her  father.     She  says,  "I  do  not  know  as  fath- 
er  did  anything  at  the  time  any  more   than  to  tell   me  that  he 
gave  them  to  me  for  my  labor  and  what  I  had   done  for  him. 
*  •  *  After  he  gave  me  the  notes  he  never  called  on  me  for  any 

money."  ....        r      .., 

It  would  seem  that  there  was  no  selfish  solicitation  for  the 
gift,  but,  on  the  contrary,  that  Mrs.  Merchant,  in  this  conversa- 
tion, and  the  defendant  in  another  talk  with  the  testator  about 
the  same  time,  suggested  to  him  that  it  ought  to  be  appropri- 
ated for  the  support  of  the  insane  sister,  and  that  when  he  gave 
the  notes  to  Mrs.  Merchant,  he  said,  apparently  in  reply  to  these 
suggestions,  that  he  '-did  not  think  this  would  be  any  help  to 
her  if  he  should  save  it  for  her  support." 

Now  it  is  insisted,  on  the  part  of  the  plaintiff,  that  there  was 
no  indorsement  of  the  notes,  and  no  delivery  of  them  to  Mrs. 


:.  PROPERTY. 

iceased  to  one  of 
The    defendant, 
med  the  property 
benefit  und  sup- 
of  the  deceased, 
in  this  suit.    The 
e  naked  question 
othy  Woodward, 
ift.     The  money 
;n  placed  by  the 
the  hands  of  the 
le     time      subse- 
e    defendant   and 
account  of  them, 
was  thus  repaid. 
:es  and  kept  them 
leeping-room,  and 
payments    to   her 
r  stood  thus,  three 
Irs.  Merchant,  the 
.ersation   with  her 
that  she  had  done 
;  had  stayed  with 
;   notes   were   then 
not  indorsed ;  they 
)  not  know  as  fath- 
to  tell   me  that  he 
lad   done  for  him. 
died  on  me  for  any 

solicitation  for  the 
nt,  in  this  conversa- 

the  testator  about 
ht   to  be   appropri- 

that  when  he  gave 
iitly  in  reply  to  these 
uld  be  any  help  to 

iitiff,  that  there  was 
y  of  them  to  Mrs. 


WING    V.    MERCHANT. 


323 


Merchant  at  the  time  of  the  conversation,  and  consequently  no 

valid  gift.  .  ^ 

But  it  has  been  settled,  that  a  valid  gift  of  a  negotiaole  prom- 
issory note  may  be  made,  either  inter  vivos  or  causa  mortis, 
without  indorsement  or  other  writing.  Grover  v.  Grover,  34 
Pick.  261;  Borneman  v.  Sidelinger,  15  Me.  429. 

To  perfect  the  gift  in  either  case,  delivery  to  the  donee  or  to 
some  person  for  him  is  necessary,  such  delivery  as  the  subject 
of  the  gift  is  capable  of.  But,  in  case  of  a  gift  inter  vivos, 
where  the  p-opcrty  has  passed  into  the  possession  of  the  donee, 
and  has  been  held  by  him  in  a  manner  indicating  a  change  of 
the  title  to  the  property,  and  a  recognition  of  the  donee's  title 
by  the  donor,  proof  of  actual  manual  tradition  at  the  time  of 
making  the  gift  may  well  be  dispensed  with. 

No  particular  ceremony  is  necessary  to  constitute  a  delivery 
when  there  is  actual  possession  by  the  donee,  accompanied  by 
sitisfactory  evidence  that  the  donor  has  relinquished  all  control 
of,  and  claim  to  the  subject  of  the  gift,  in  her  favor.  I  borrow 
a  book  of  my  friend,  and  while  it  is  in  my  possession,  he  says,  'I 
make  you  a  present  of  it,"  and  I  hold  it  thereafterward  as 
mine;  it  can  not  be  essential  to  the  v.ilidity  of  the  gift  that  I 
should  first  put  it  into  his  hands  in  order  that  it  may  be  returned 
to  mine.     Lex  non  cogit  ad  vana  seu  inutilia. 

The  actual  transfer  of  possession  to  the  donee,  whenever  and 
however  accomplished,  if  supplemented  by  plenary  evidence  of 
an  intentional  release  to  the  donee,  on   the  part  of  the   donor, 
fer  verba  de  pracsenti  of  any  and   all  right   or   claim    ever   to 
resume  the  possession,  or  to  deprive  the  donee  of  it,  will  make 
a  complete  gift  inter  vivos.     It  matters  not  whether  the  change 
of  possession  takes  place  before  or  after,  or  at  the  time  of  the 
utterance  of  the  words  importing  a  gift,  if  there   is  a  manifest 
design  on  the  part  of  the  donor  that  the  donee   should   thereaf- 
terward hold  such  possession   absolutely  as  of   his  own   prop- 
erty     Thenceforward,  the  possession  and  the  right  are  concur- 
rent in  the  same  person,  and  the  gift  is  perfect  and  irrevocable. 
These  elements  we  find  in  the  case  at  bar.     The  notes  were 
already  in  the  possession  of  Mrs.  Merchant,  when  the  testator, 
in  conversation  with  her  respecting  them,  used  language  import- 
ing  a  present,  absolute,  unconditional  gift,  and  a  making  over 
of  all  his  interest  in  them  to  her.     From  that  time  during  the 


\ 


3,4       MODES  OF  OHTAIMNG  TITLE  TO  PERSONAL  PROIT.KTV. 

remaining  three  or  fonr  years  of  hi^  life,  he  never  called  upon 
her  or  her  husband  for  small  sun^-,  on  account  of  them,  as  he 
had  before  been  accustomed  to  ao.  The  defendant  eKchan.ed 
the  notes  for  others,  and  paid,  not  to  the  testator,  bn  to  M.s. 
Merchant,  such  sums  on  account  of  them  as  she  called    or 

There  is  an  essential  difference  between  this  case  and  that  of 
Shower  V.  Pilck,  4  Exch.  47S,  relied  on  for  the  plaint.ff. 

There,  though  the  silver  plate  was   in  the   possession   of  the 
alleged  donee,  the  language  of  the    testator   imphed    nothing 

beyond  a  promise  to  give  in  the  future.  ,.„,.„. 

•^  ^  Judgment  for  the  defendant. 

Kext,  Wai-tov,  Danforth,  and  Tapley,  JJ.,  concurred. 

Appletov,  C.  J. -I  concur  in  the  opinion.  Delivery  is 
essential  to  pass  the  title  to  a  chattel  by  gift;  but  if  at  the  time 
the  donee  is  in  possession,  a.  .ne  donor's  agent,  he  need  not 
surrender  it  for  a  redelivery;  if  the  donor  relinquishes  all  do- 
„.inion  and  control,  and  recognizes  the  donee's  PO-s^uon  as 
being  in  his  own  right,  and  the  donee  so  accepts  -^,"^"0" 
possession  with  the  donor's  consent,  it  is  sufhcient.  Tenbrook 
V.  Brown,  17  Ind.  410. 

CoNSUi-r-Ross  v.  Draper,  55  Vt.  404,  4.S  A-n.  Rep.  624;  Bennett  v. 
r^\    .«  q    r    1-^-  Groverv.   Grover,  24  Pick.  261;  Nd..  ..utn, 

Cook,  28  S.  C.  3^3.  '-rover  V.  J,^    .,..  Voeel  v.   :  ^o  Mo. 

39  Cal.  120. 


§  63.    Gifts  causa  mortis. 

BASKET  V.  HASSELL. 

[107  U.  S.  602.] 

Supreme  Court  of  the  United  States,  1883. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
District  of  Indiana.     [8  Biss.  303;   7  Cent.  L.  J.  30«-J 

Mr.  Justice  MATTHKWS.-This  is  a  bill  -  .^^-^y' .f  ^^^ 
the  appellee,  a  citizen  of  Tennessee,  to  which  besules  the 
airnt,  a  citizen  of  Kentucky,  The  Evansvdle  National 
fiTk  of  EvansviUe,   Indiana,   Samuel    Bayard,   Us  president. 


\ 


'ROrP.KTV. 

M-  called  upon 
f   til  em,   as  he 
ant  exchantjed 
:,  but  to  Mrs. 
called  for. 
ase  and  that  of 
plaintiff, 
ssession   of  the 
nplicd    nothing 

•  the  defendant. 
JJ.,  concurred. 

n.  Delivery  is 
It  if,  at  the  time, 
nt,  he  need  not 
iquishes  all  do- 
's possession  as 
Dts  and  releases 
ient.     Tenbrook 


ip.  624;   Bennett  v. 

jl   V.    •  ^o  Mo. 

L.evl'.iaiu  v.   Evans^ 


BASKET  V.    HASSEI.L. 


325 


'cs,  1883. 

ted  States  for  the 

L.  J.  308-] 
in  equity,  filed  by 
/hich    besides   the 
transville   National 
ard,   its  president. 


and   Henry  Reis,  its  cashier,  and  James  W.  Shackelford  and 
Robert   D.    Rich.irdson,    attorneys    for   Basket,    a    citizen    of 
Indiana,  were  made  parties  defendant.     The  single  question  in 
the  case  was,  whether  a  certain  fund,  represented  by  a  certifi- 
cate of  deposit,  issued  by  the  bank  to  Chaney  in  his  lifetime, 
belonged  to   Basket,  who   claimed   it  as   a  gift  from    Chaney, 
having   possession   of    the    certificate,   or   to    the    appellee,    as 
Chaney's  administrator.      Basket  asserted  his  title,  not  only  by 
answer,  but  by  a  cross  bill.     The  final  decree  ordered  the  cer- 
tificate of  deposit  to  be  surrendered  to  the  complainant,   and 
that  the  bank  pay  to  the  complainant,  as  its  holder,  the  amount 
due  thereon.     The  money  was  then  tendered  by  the  bank,  in 
open  court,   and  the  certificate  was  deposited  with  the  clerk. 
It  was  tiicreupon    ordered,   Basket  having  prayed    an  appeal, 
that  until  the  expiration  of  the  time  allowed  for  filing  a  bond  on 
appeal,  the  bank  should  hold  the  money  as  a  deposit  at  four 
per  cent  interest,  but  if  a  bond  be  given,  that  the  same  be  paid 
to  the  clerk,  and  by  him  loaned  to  the  bank  on  the  same  terms. 
Basket  failed  to  give  the  bond  required  for  a  supersedeas,  but 
afterward    prayed    another    appeal,    which    he    perfected    by 
giving  bond   for  costs  alone.      To  this  appeal   Basket  and  the 
appellee    are    the    parties    respectively,    the    codefendants    not 
having  appealed,  or  been  cited  after  severance.      And  on  the 
ground  that  they  are  necessary  parties,  the  appellee  has  moved 
to  dismiss  the  appeal. 

It  is  apparent,  however,  that  the  sole  controversy  is  between 
the  present  parties  to  the  appeal.     By  the  delivery  of  the  cer- 
tificate  of    deposit  to   the   clerk,  the  attorneys   of  Basket  are 
exonerated   from  all   responsibility;    and  the   payment  of   the 
money  by  the  bank  equally  relieves  it  and  its  officers;  for,  not 
being  parties  to  the  appeal,  and  the  execution  of  the  decree  not 
having  been  superseded,  the  decree  will  always  furnish  them 
protection,  whether  affirmed  or  reversed,  because,  if  reversed, 
it  would  only  be  so  as  between  the  parties  to  the  appeal.     So 
that  the  omitted  parties  have  no  legal  interest,  either  in  main- 
taining  or   reversing  the   decree,  and,  consequently,    are    not 
necessary  parties  to  the  appeal.     Simpson  v.  Greely,  20  Wall. 
152;  Cox  v.  United  States,  6  Pet.    1S2  ;   Forgay  v.  Conrad,  6 
How.  303;   Germain  v.  Mason,  i3  Wall.  361.     The  motion  to 
dismiss  the  appeal  is  accordingly  over.uled. 


i 


} 


326       MODKS  OK  OnTAlNING  TITLE  TO  PERSONAL  PKOPEnTY. 

The  fund  in  respect  to  which  the  controversy  has  arisen  was 
represented  by  a  certificate  of  deposit,  of  which  the  following 

is  n  copy : 

"EvAxsviLLE  National  Bank, 

"Evansvilie,  Ind.,  Sept.  8,  1S75. 
"H.  M.  Chaney  has  deposited  in  this  bank  twenty-three 
thousand  five  and  fourteen  and  70-100  dollars,  payable  in  cur- 
rent  funds,  to  the  order  of  himself,  on  surrender  of  this  cer- 
tificate properly  indorsed,  with  interest  at  the  rate  of  six  per 
cent  per  annum,  if  left  for  six  months. 

,,$23,514.70.  Henry  Reis,  Cashier."^ 

Chaney,  being  in  possession  of  this  certificate  at  his  home  in 
the  county  of  Sumner,  state  of  Tennessee,  during  his  last 
sickness  and  in  apprehension  of  death,  wrote  on  the  back 
thereof  the  following  indorsement: 

"Pay  to  Martin  Basket,  of  Henderson,  Ky. ;  no  one  else; 
then  not  till  my  death.  My  life  seems  to  be  uncertain.  I  may 
live  through  this  spell.     Then  I  will  attend  to  it  myself. 

"H.  M.  Chaney." 
Chaney  then  delivered  the  certificate  to   Basket,  and  died, 
without  recovering  from  that  sickness,  in  January,  1S7  . 

It  is  claimed  on  behalf  of  the  appellant  that  this  constitutes 
a  valid  donatio  mortis  causa,  which  entitles  him  to  the  fund; 
and  whether  it  be  so,  is  the  sole  question  for  our  determmation. 
The  general  doctrine  of  the  common  law  as  to  gifts  of  this 
character  is  fully  recognized  by  the  supreme  court  of  Ten- 
nessee as  a  part  of  the  law  of  that  state.  Richardson  v. 
Adams,  10  Yerg.  273;  Sims  v.  Walker,  8  Humph.  503;  Gass 
V.  Simpson,  4  Cold.  28S. 

In  the  case  last  mentioned,  that  court  had  occasion  to  con- 
sider the  nature  of  such  a  disposition  of  property,  and  the 
several  elements  that  enter  into  its  proper  definition.  Among 
other  things,  it  said:  "A  question  seems  to  have  arisen,  at  an 
early  day,  over  which  there  was  much  contest,  as  to  the  real 
nature  of  gifts  causa  mortis.  Were  they  gifts  inter  vivos,  to 
take  effect  before  the  death  of  the  donor,  or  were  they  in  the 
nature  of  a  legacy,  taking  effect  only  at  the  death  of  the  donor 
At  the  termination  of  this  contest,  it  seems  to  have  been  settled 
that  a  gift  causa  mortis  is  ambulatory  and  incomplete  during 
the  donor's  life,  and  is  therefore  revocable  by  him  and  subject 


lOPEUTY. 

as  arisen  was 
the  following 

.  Bank,   \ 

575-  J 

twenty-three 

;\yable  in  cur- 
;r  of  this  cer- 
ate of  six  per 

,  Cashier." 
at  his  home  in 
Liring   his   last 
on   the   back 

;   no  one  else ; 
ertain.     I  may 
myself. 
,  Chaney." 
ket,  and  died, 
y,  1S7   . 
this  constitutes 
n  to  the  fund ; 
determination, 
to  gifts  of  this 
court   of    Ten- 
Richardson   V. 
iph.  503;   Gass 

ccasion  to  con- 
pcrty,  and  the 
lition.  Among 
ve  arisen,  at  an 
:,  as  to  the  real 
;  tti(cr  vivos,  to 
■ere  they  in  the 
th  of  the  donor, 
ave  been  settled 
omplete  during 
him  and  subject 


BASKET  V.   HASSEIX. 


3-7 


to  his  debts,  upon  a  deficiency  of  assets,  not  because  the  g.  t  is 
testamentary  or  in  the  nature  of  a  legacy,  but  because  such  .s 
the  condition  annexed  to  it,  and  because  it  would  otherw.se  be 
fru.dulent  as  to  creditors;  for  no  man  may  give  h.s  property 
^vho  is  unable  to  pay  his  debts;  and  all  now  agree  that  .t  has 
„o  other  property  in  common  with  a  legacy.     The   property 
must  pass  at  the  time  and  not  be  intended  to  pass  at  the  guer  s 
death;  yet,  the  party  making  the  gift  does  not  part  with  the 
whole  interest,  save  only  in  certain  events;   and  until  the  event 
occurs  which  is  to  divest  him,  the  title  remains  m  the   donor. 
The  donee  is  vested  with  an  inchoate  title,  and  the  intermediate 
ownership  is  in  him  ;  but  his  title  is  defeasible  until  the  happen- 
ing of  the  event   necessary  to   render  it    absolute.     It   differs 
^rom  -i  le-acy  in  this,  that  it  does  not  require  probate,  does  not 
mss  to  the  executor  or  administrator,  bvt  is  taken  agamst   not 
from  him.     Upon  the  happening  of  the  event  upon  which  the 
irift  is  dependent,  the  title  of  the  donee  becomes,  by  relation, 
complete  and  absolute  from  the  time  of  the  delivery,  and  that 
without  any  consent  or  other  act  on  the  part  of  the  executor  or 
administrator;     consequently,    the    gift   is    i"^^>\  ;^^^<>^;  " 

another  part  of    the   opinion   (p.    297) /t  •«,«""'=.'/'     1^" 
authorities  agree  that  delivery  is  essential  to  the  validity  of  Inc 
gift,  and  that,  it  i^  said,  is  a  wise  principle  of  our  laws,  because 
delivery  strengthens  the  evidence  of  the  gift,  and  is  certainly  a 
very  powerful  fact  for  the  prevention  of  frauds  and  perjury." 
In    the   first   of    these    extracts   there    is   an    inaccuracy  of 
expression,  which  seems  to  have  introduced  some  confusion,  if 
not  an  apparent  contradiction,  when,  after  having  stated  that 
"the  property  must  pass  at  the  time  and  not  be  intended  to  pass 
nt  the  giver's  death,"  it  is  added,  that  "until  the  event  occurs 
which  is  to  divest  him,  the  title  remains  in  the  donor."     But  a 
view  of  the  entire  passage  leaves  no  room  to  doubt  its  meaning; 
that  a  donatio  mortis  causa  must  be  completely  executed,  pre- 
cisely as  required  in  the  case  of  gifts  inter  vivos,  subject  to  be 
divested  by  the  happening  of  any  of  the  conditions  subsequent; 
that  is,  upon  actual  revocation  by  the  donor,  or  by  the  donor's 
surviving  the  apprehended  peril,  or  outliving  the  donee,' or  by 
the  occurrence  of   a  deficiency  of  assets  necessary  to  pay  the 
debts  of  the  deceased  donor.     These   conditions  are  the  only 
qualifications  that  distinguish  gifts  mortis  causa  and  tntcr  vivos. 


32S       MODES  OF  OBTAINING  'ITII.E  TO  PEKSONAI,  PUOl'KHTY. 

On  the  other  hand,  if  the  gift  does  not  take  effect  as  an  exe- 
cuted and  complete  transfer  to  the  donee  of  possession  and 
title,  either  le^al  or  eciuitable,  during  the  life  of  the  do-ior,  .t  ,s 
a  testamentary  disposition,   good   only  if  made  and  proved  as 

"^  This  statement  of  the  law,  we  think,  to  be  correctly  deduced 
from  the  judgments  of  the  highest  courts  in  England  and  m  tins 
country;   although,  as  might  well  have  been  expected   s.nce  the 
early  introduction  of  the  doctrine  into  the  common  law  from 
the  Roman  civil  law,  it  has  developed,  by  new   and  successive 
applications,  not  without  fluctuating  and  inconsistent  decisions. 
"As  to  the  character  of  the  thing  given,"  says  Chief  Justice 
Shaw,  in  Chase  v.  Redding,  13  tiray,  41S-420,  "the  law  has 
undergone  some  changes.     Originally  it  was  limited,  with  some 
exactness,  to  chattels,  to  some  object  of  value  de  iverab  e  by 
the    hand;    then  extended  to  securities  transferable  solely  by 
delivery,  as  bank  notes,  lottery  tickets,  notes  payable  to  bearer 
or  to  order,  and  indorsed  in  blank;  subsequently   it  has  been 
extended   to  bonds   and  other  choses  in  action,  in  writing  or 
represented  by  a  certificate,  when  the  entire  equitable  interest 
is  assigned;   and  in  the  very  latest  cases  on  the  subject  in  this 
commonwealth,  it  has  been  held  that  a  note  not  negotiable,  or 
if  negotiable,  not  actually  indorsed,  but  delivered,  passes,  with 
a    right   to  use   the   name   of   the  administrator  of  the  prom- 
'isee,  to  collect  it  for  the  donee's  own  use."  Citing  Sessions  v. 
Moseley,  4  Cush.  87;   Bates  v.  Kempton,  7  Gray,  382;   Pansh 
V.  Stone,  14  Pick.  203. 

In  the  case  last  mentioned-Parish  v.  Stone-the  same  dis- 
tinguished judge,  speaking  of  the  cases  which  had  extended  the 
doctrine  of   gifts  mortis  causa  to  include   choses   m  actions, 
delivered  so  as  to  operate  only  as  a  transfer  by  equitable  assign- 
ment or  a  declaration  of  trust,  says  further,  that  "these   cases 
all  CO  on  the  assumption  that  a  bond,  note,  or  other  security  is  a 
valid  subsisting  obligation  for  the  payment  of  a  sum  of  money, 
and  the  gift  -,  in  effect,  a  gift  of  the  money  by  a  gift  and  deliv- 
erv  of  the  instrument  that  shows  its  existence  and  affords  the 
the  means  of  reducing  it  to  possession."    He  had,  in  a  previous 
part  of  the  same  opinion,  stated  that  "the  necessity  of  an  actual 
delivery  had  been  uniformly  insisted  upon  in  the  application  of 
the  rules  of  the  English  law  to  this  species  of  gift."     Page  204. 


Mi 


,  I'uoriciM  V. 

[feet  as  an  exc- 
[  possession  and 
if  the  do-ior,  it  is 
le  and  proved  as 

jorrectly  deduced 
ifrhuid  and  in  tliis 
upccted,  since  tlie 
iinnion  law  from 
V   and  successive 
isistent  decisions. 
US  Chief  Justice 
20,  "the  law  has 
imited,  with  some 
le  deliverable  by 
;ferable  solely  by 
payable  to  bearer 
L-ntly    it  has  been 
on,  in  writing  or 
equitable  interest 
he  subject  in  this 
lot  negotiable,  or, 
ercd,  passes,  with 
[itor  of  the  prom- 
Citing  Sessions  v. 
GJray,  3S2  ;   Parish 

ne — the  same  dis- 
1  had  extended  the 
choses    in   actions, 
)y  equitable  assign- 
that  "these   cases 
•  other  security  is  a 
f  a  sum  of  money, 
by  a  gift  and  deliv- 
ce  and  affords  the 
-.  had,  in  a  previous 
:cessity  of  an  actual 
n  the  application  o£ 
[gift."     Page  204. 


nASKF.T  V.   IIASSKI.I.. 


329 


In  Camp's  Appeal,   36  Conn.   88,   the  Supreme  Court  of 
Errors  of  Connecticut  held  that  a  delivery  to  a  donee  ol  a  sav- 
ings bank  book,  containing  entries  of  deposits  to  the  credit  of 
the  donor,  with  the  intention  to  give  to  the  donee  the  deposits 
represented  by  the  book,  is  a  good  delivery  to  constitute  a  com- 
plete gift  of  such  deposits,  on  the  general  ground  that  a  delivery 
of  a  chose  in  action  that  would  be  sutllcient  to  vest  an  eciu.ta- 
ble  title   in   a  purchaser  is  a  suHicient  delivery  to  constitute  a 
valid  gift  of  such  chose  in  action  without  a  transfer  of  the  legal 
title      That  was  the  case  of  a  gift  inter  vivos.     But  the  court 
say,  referring  to  the  case  of  Brown  v.  Brown,  iS  Conn.  410,  as 
having  virtually  determined  the  point:     "It  is  true  that  was  a 
donation  causa  vwrtis,  but  the  principle   involved  is  the  same 
in  both  cases,  as  there  is  no  difference  in  respect  to  the  requi- 
sites of  a  delivery  between  the  two  classes  of  gifts."     And  so 
Justice  Wilde,  delivering  the  opinion  of  the  court  in  Grover^v. 
Grover,  24  Pick.  261-264,  expressly  declared  that  "a  gift  01  a 
chose   in   action,   provided  no  claims  of  creditors  intertere  to 
affect  its  validity,  ought  to  stand  on  the  same  footing  as  a  sale  ; 
that  the  title  passed,  and  the  gift  became  perfected  by  a  deliv- 
ery and  acceptance;  that  there  was,  therefore,  "no  good  reason 
why   property  thus  acquired   should  not  be  protected  as  fully 
and  effectually  as  property  acquired  by  purchase;"  and  showed 
by  a  reference  to  the  cases,  that  there  wa.      >  difference  in  this 
respect  between  gifts  inter  vivos  and  mortis  causa. 

In  respect  to  the  opinion  in  this  case,  it  is  to  be  observed  that 
it  cites  with   approval  the   case  of  Wright  v.  Wright,  i  Cow 
.08,  in  which  it  was  decided  that  the  promissory  note,  of  which 
the  donor  himself  was  maker,  might  be  the  subject  of  a  valid  gift 
mortis  causa,  though  the  concurrence  was  not  upon  that  point. 
That  case,  however,  has  never  been  followed.  It  was  expressly 
disapproved  and  disregarded  by  the  Supreme  Court  of  Errors  of 
Connecticut   in    Raymond   v.    Sellick,    10   Conn     4^0,  Judge 
Waite  delivering  the  opinion  of  the  court;  had  been  expressly 
questioned  and  disapproved  in  Parish  v.  Stone    14  1  'ck.    19S-- 
206   by  Shaw,  C.  J.,  and  was  distinctly  overruled  by  the  court 
of  appeals  of  New  York  in  Harris  v.  Clark,  3  Comstock   93- 
In   that  case  it  was  said:   "Gifts,  however,  are  valid  without 
consideration  or  actual  value  paid  in  return.     But  there  must 
be  delivery  of  possession.     The  contract  must  have  been  exe- 


330    MODES  OF  onrA.MNc;  title  to  i-eusonal  property. 

cutcl.  The  thrnK  pivcn  must  be  put  into  the  hands  of  the 
aonce,  or  place.l  within  his  power  by  delivery  of  the  mea.^  of 
obtaining  it.  The  sift  of  the  maker's  own  note  .s  the  dchvery 
of  a  promise  ouly,  and  not  of  the  thing  promised,  and  the  ^  1 1 
therefore  fails.  Without  delivery  the  transaction  ,s  not  valid 
as  an  executed  gift;  an.l  without  consideration  it  is  not  vahd  as 
a  contract  to  be  executed.  The  decision  in  Wr.ght  v.  Wr.ght 
was  founded  on  a  supposed  distinction  between  ag.ftj«/.r 
vivos  and  Uonaiio  mortis  causa.  Hut  there  appears  to  be  no 
such  distinction.     A  delivery  of  possession  .s  md.spensable  m 

cither  case."  , 

The  case  from  which  this  extract  is  taken  was  very  thor- 
oughly argued  by  Mr.  John  C.  Spencer  lor  the  plauU.ff  and 
Mr   Charles  O'Connor  for  the  defendant,  and  the  judgment  of 
the'  court  states  and   reviews   the   doctrine  on  the  subject  w.th 
nu.ch  learning  and  ability.     It   was  held  that  a  wr.tten  order 
upon   a   third   person,  for  the  payment  of  money,  made  by  the 
donor,  was  not  the  subject  of  a  valid  gift,  either  inter  rnvos  or 
mortis  causa-,  and  the  rule  applicable   in  -ch  cases    as  con- 
ceded    by   Mr.    O'Connor,    was    stated   by   hmi     ''«     """^J" 
-Delivery  to  the  donee  of  such  an  instrument  as  w.ll  enable 
him  by  fcuce  of  the  instrument  itself,  to  reduce  the     und   n.to 
possession,  will  suffice,  is  the  plaintiff's  doctnne.     Th.s  m.ght 
safely  be  conceded.     It  might  even  be  conceded  that  a  dehve.  y 
out  of  the  donor's  control  of  an  instrument,  without  which  he 
could   not  recover  the   fund  from  his  debtor  or  agent,  would 

'"ThI"  same  view,  in  substance,  was  taken  in  deciding  Hewitt 
V  Kave,  L.  R.,  6  Eq.  198,  Nvhich  was  the  case  of  a  check  on  a 
banker  given  by  the  drawer  mortis  causa,  who  died  before  it 
w  IS  possible  to  present  it,  and  which  was  held  not  to  be  vahd 
Lord  RomiUy,  M.  R.,  said:  "When  a  man  on  his  deathbed 
.ives  to  another  an  instrument,  such  as  a  bond,  or  promissory 
note  or  an  I  O  U,  he  gives  a  chose  in  action,  and  the  delivery 
of  the  instrument  confers  upon  the  donee  all  the  rights  to  the 
chose  in  action  arising  out  of  the  instrument.  That  s 
principle  upon  which  Amis  v.  Witt,  33  Beav.  619,  vst  , 

where   the  donor  gave  the  donee   a  document  by  .   the 

bankers  acknowledged  that  they  held  so  much  mone      ^elong- 
in.  to  the  donor  at  his  disposal,  and  it  was  held  that  the  deln 


,  I'ROPERTY. 

he  hands  of  the 
of  the  means  of 
e  is  the  delivery 
sed,  and  the  ^\it 
;tion  IS  not  valid 

it  18  not  valid  as 
r^right  V.  Wrif,'ht 
/ecu  a  yift  tntt-r 
ppears  to  be  no 

indispensable  in 

n  was  very  thor- 
the  plaintiff  and 
the  judgment  of 
1  the  subject  with 
t  a  written  order 
ney,  made  by  the 
ler  inicr  vivos  or 
.ich  cases,  as  con- 
him     as   follows: 
:nt  as  will  enable 
ice  the  fund   into 
fine.     This  might 
dedthat  a  delivery 
without  which  he 
r  or  agent,  would 

n  deciding  Hewitt 
ase  of  a  check  on  a 
vho  died  before  it 
;ld  not  to  be  valid, 
n  on  his  deathbed 
ond,  or  promissory 
1,  and  the  delivery 
all  the  rights  to  the 
lent.  That  "s  tl' 
'.  619,  w;  ■, 

nent  by  ■   the 

Lich  mone        elong- 
tield  that  the  deliv- 


nASKKT  V.   IIASSKM.. 


33« 


e,v  of  that  document  conferred  upon  the  donee  the  r.-ht  to 
,,;eive  the  money.  Hut  a  check  is  notlung  more  than  an  order 
„.  obtain  a  certain  sum  of  tuoney,  and  it  makes  no  d.tlcrence 
.vluther  the  money  is  at  a  banker's  or  anywhere  else.  It  .s  an 
order  to  deliver  the  money,  an.l  if  the  or.kr  is  not  acte.  upon 
i„  the  lifetime  of  the  person  who  gives  it,  it  is  worth  nc.ih.ng. 
Vccordinglv  the  Vice-chancellor,  /«  re  Heck  s  Estate,  L.  K., 
', ,  He,.  4S.;,  refused  to  sustai.i  as  a  valid  gift  a  check  upon  a 
banker,  even  although  its  delivery  was  accompanied  by  that  of 

tlie  donor's  pass-book.  ,     ,      , 

The  same  rule,  as  to  an  unpaid  and  unaccepted  check,  was 
followed  in  Second  National  Bank  of  Detroit  v.  Williams,  ,3 
Mich  282.  The  principle  is  that  a  check  upon  a  bank  account 
is  not  of  itself  an  equitable  assignment  of  the  fun.l.  Hank  of 
the  Republic  v.  Millard,  10  Wall.  .5^.  Hut  .f  the  banker 
,ccents  the  check,  or  otherwise  subjects  himself  to  babd.ty  as  a 
Irustee,  prior  to  the  death  of  the  donor,  the  gift  is  complete  and 
vdid.     Hromley  v.  Hrunton,  L.  R.,  6  Eq.  275. 

'  Contrary  decisions  have  been  made  in  respect  to  donat.ons 
,„orils  causa  of  savings  bank  books,  some  courts  holdmg  that 
the  book  itself  is  a  document  of  title,  the  dehvery  of  wh.ch, 
with  that  hUent,  is  an  equitable  assignment  of  the  tund.  1  .erce 
V  Hoston  Savings  Hank,  .29  Mass.  4^5  ;  HiU  v.  Stevenson,  63 
Mune  X6±:  Tillinghast  v.  WReaton,  S  R.  E  536.  The  con- 
tniry  w-  ^-Id  in  A^hbrook  v.  Ryan,  2  Hush,  228,  and  in  Mc 
Gonnell  v.  Murray,  Ir.  Rep.,  3  Eq.  460- 

That    a   delivery   of   a  certificate  of   deposit,   such    as   tha 
described   in   the   record  in  this  case,  might  constitute  a  val.d 
donatio  .ortis  causa,   does  not  admit  of  doubt.      It  was   so 
decided  in  Amis  v.  Witt,  33  Beav.  619;   n.  Moore  vMoore 
L    R     iS  Eq.  474;  Hewitt  V.  Kaye,  L.  R.,  6  Eq.  198;  Wes- 
tedy  V.  DeWitt,  36  N.  Y.  340.     A  certificate  of  deposit   is  a 
subsisting  chose  in  action  and  represents  the  funds  it  describes, 
■IS   in  cases   of  notes,   bonds,   and  other  securities,   so   that  a 
'lelivory  of  it,  as  a  gift,  constitutes  an  equitable  assignment  of 
I  he  money  for  which  It  calls.  .    ,       ,     • 

The  point,  which  is  made  clear  by  this  review  of  the   deci- 
ons  on  the  subject,  as  to  the  nature  and  effect  ot  a  dehvery  of 
1  chose  in  action,  is,  as  we  think,  that  the  instrument  or  docu- 
ment must  be   the   evidence  of  a  subsisting  obligation  and  be 


V 


^32       MODES  OF  OBTAINING  TITLE  TO  PEIISONAL  PROPERTY. 

delivered  to  the  donee,  so  as  to  vest  him  with  an  equitable  title 

to  the  fund  it  represents,  and  to  divest  the  donor  of  all  present 

control   and  dominion  over  it,  absolutely   and  irrevocably,   in 

case  of  a  gift  inter  vivos,  but  upon  the  recognized  conditions 

subsequent,  in  case  of  a  gift  monis  causa;  and  that  a  delivery 

which  does  not   confer  upon  the  donee  the   present   right   tc 

reduce   the   fund    in   possession   by   enforcing  the  obligation, 

according  to  its  terms,  will  not  suffice.     A  delivery,  in  terms, 

which  confers  upon  the  donee  power  to  control  the  fund  onlj 

after  the  death  of  the  donor,  when  by  the  instrument  itself  it  ii 

presently  pavable,  is  testamentary  in  character,  and  not  gooc 

a.i  a  gift.     Further  illustraaons  and  applications  of  the  princi 

plJmay  be  found  in  the  following  cases:     Powel  v.  Ilellicar 

26  Beav.  261;   Reddell  v.  Dorbee,  10  Sim.   244;  Farquharsoi 

V.  Cave.   2  Coll.   356;  Hatch  v.   Atkinson,  56    Maine,    324 

Beeran  v.  Markham,  7  Taunt.   224;  Coleman  v.  Parker,  11, 

Mass.   c^o;  Wing  v.   Merchant,  57  Maine,  383;   McWillie  v 

Van  Vacker,  35  Miss.  42S;  Egerton  v.  Egerton,  17  N.  J.  Ec 

420-  Michener  v.  Dale,  23  Pa.  St.  59. 

The  application  of  these  principles  to  the  circumstances  c 

the  present   case    requires   the   conclusion    that   the   appellar 

acquired  no  title  to  the  fund  in  controvc  sy,  by  tu2  indorsemer 

and  delivery  of  the  certificate  of  deposit.     The  certificate  wi 

payable  on  demand  ;  and  it  is  unquestionable  that  a  delivery  ( 

it  to   the   donee,  with   an  indorsement  in  blank,  or  a   specii 

indorsement  to  the  donee,  or  without  indorsement,  would  ha\ 

transferred  the  whole  title  and  interest  of  the  donor  in  the  fur 

represented  by  it,  and  might  have  been  valid  as  a  donatio  mo 

tis  causa.     That  transaction  would  have  enabled  the  donee 

reduce  the  fund  into  actual  possession,  by  enforcing  nn.>n'- 

according  to  the  terms  of  the  certificate.     The  donee  mig 

have  forborne  to  do  so,  but  "-"t  would  not  have  affected  h 

right.     It  can  not  be  said  li.  it  obtaining  payment  in  the  lif 

time  of  the  donor  would  have  been  an  unauthorized  use  of  tl 

instrument,  inconsistent  with  the  nature  of  the  gift;  for  the  g 

is  of  the  money,  and  of  the  certificate  of  deposit,  merely  as 

means  of  obtaining  it.     And  if  the  donee  had  drawn  the  mone 

upon  surrender  of  the  certificate,  and  the  gift  had  been  subs 

quenlly  revoked,  either  by  the  act  of  the  donor  or  by  operati 

of  law,  the  donee  would  be  only  under  the  same  obligation 


BASKET  V.   HASSELL. 


335 


>EKSONAL  PROPERTY. 

n  with  an  equituble  title 
the  donor  of  all  present 
tely  and  irrevocably,  in 
he  recognized  conditions 
usa  \  and  that  a  delivery 
lec  the  present  right  to 
niforcing  the  obligation, 
;.  A  delivery,  in  terms, 
r  to  control  the  fnnd  only 
the  instrument  itself  it  is 

character,  and  not  good 
pplications  of  the  princi- 
ses:  Powel  v.  Hellicar, 
1  Sim.  244;  Farquharson 
kinson,  56    Maine,    324; 

Coleman  v.  Parker,  114 
Maine,  3S3;  McWillie  v. 
V.  Egerton,  17  N.  J.  Eq. 

9- 

s  to  the  circumstances  of 

lusion   that   the   appellant 

)vc  sy,  by  tu2  indorsement 

osit.     The  certificate  was 

tionable  that  a  delivery  of 

nt  in  blank,  or  a   special 

indorsement,  would  have 

st  of  the  donor  in  the  fund 

en  valid  as  a  donatio  mor- 

have  enabled  the  donee  to 

ion,  by  enforcing  nn.)n'-it 

ificate.     The  donee  might 

ould  not  have  affected  his 

aining  payment  in  the  life- 

in  unauthorized  use  of  the 

ure  of  the  gift ;  for  the  gift 

ite  of  deposit,  merely  as  a 

once  had  drawn  the  money, 

d  the  gift  had  been  subse- 

;  the  donor  or  by  operation 

der  the  same  obligation  to 


return  the  money,  that  would  have  existed  to  return  the  cert.h- 
cute,  if  he  had  continued  to  hold  it,  uncollected. 

But  the   actual  transaction  was  entirely  different.     The  m- 
dorsement,   which   accompanied  the  delivery,  qualified  .t,  and 
li.nited  and  restrained  the  authority  of  the  donee  in  the  collec- 
tion of  the  money,  so  as  to  forbid  its  payment  until  the  donor  s 
death.     The  propertv  in  the  fund    did  not  presently  pass,  but 
remained  in  the  donor,  and   the  donee  was  excluded  from  its 
possession  and  control  during  the  life  of  the  donor.     That  qual- 
itication  ol  the  right,  which  would  have  belonged  to  him  it  he 
hid  become  the  present  owner  of  the  fund,  establishes  that  there 
wa     no  delivery  of  possession,   according  to  the  terms  of  the 
instrument,  and  that  as  the  gift  was  to  take  effect  only  upon  the 
death  of  the  donor,  it  was  not  a  present  executed  gift  mortis 
causa,  but  a  testamentary  disposition,  void  for  want  of  comp  1- 
ance  with  the  statute  of  wills.     The   right  conferred   upon  the 
donee  was  that  expressed  in  the  indorsement;   and  that,  instead 
of  bein-  a  transfer  of  the  donor's  title  and  interest  in  the  fund, 
as  established  by  the  terms  of  the   certificate   of  deposit,  was 
merely  an  order  upon  the  bank  to  pay  to  the  donee  the  money 
c-illed  for  by  the  certificate,  upon  the  death  of  the  donor.     It 
was,  in  substance,  not  an   assignment  of  the  fund  on  deposit, 
but  a  check  upon  the  bank  against  a  deposit,  which,  as  is  shown 
by  all  the  authorities  and  upon  the  nature  of  the  case,  can  not 
be  vMid  as  a  'donatio  mortis  causa,  even  where  it  is  payable  t?i 
f>rcscuti,  unless  paid  or  accepted  while  the  donor  is  alive ;  how 
much  less  so,  when,  as  in  the  present  case,  it  is  made  payable 
only  upon  his  death. 

The  case  is  not  distinguishable  from  Mitchell  v.  Smith,  ^ 
DeG  J  &  S.  422,  where  the  indorsement  upon  promissory 
notes',' claimed  as  a  gift,  was,  "I  bequeath-pay  the  within  con- 
tents, to  Simon  Smi:h,  or  his  order,  at  my  death."  Lord  Jus- 
tice Turner  said:  "In  order  to  rende.  the  indorsement  anl 
delivery  of  a  promissory  note  effectual,  thf  y  must  be  such  as  to 
enable  the  indorsee  himself  to  indorse  a:.d  negotiate  the  note. 
That,  the  respondent,  i^ilnion  Smith,  could  not  have  done  here 
during  the  testator's  life."  It  was  accordingly  held  that  the 
disposition  of  the  notes  was  testamentary  and  invalid. 

It  can  not  be  said  that  the  condition  in  the  indorsement,  which 
forbade  payment  until  the  donor's  death,  was  merely  the  condi- 


334       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

Hon  attached  by  the  law  to  every  such  gift.  Because  the  condi- 
tion,  xvhich  inheres  in  the  gift  mortis  causa,  is  a  subsequent 
condition,  that  the  subject  of  the  gift  shall  be  returned  if  the 
<rift  fails  by  revocation;  in  the  meantime  the  gift  is  executed, 
The  title  has  vested,  the  dominion  and  control  of  the  donor  has 
passed  to  the  donee.  While  here,  the  condition  annexed  by 
the  donor  to  his  gift  is  a  condition  precedent,  which  must  hap- 
pen before  it  becomes  a  gift,  and,  as  the  contingency  contem- 
plated  is  the  donor's  death,  the  gift  can  not  be  executed  ni  his 
lifetime,  and,  consequently,  can  never  take  effect. 

This  view  of  the  law  was  die  one  taken  by  the  circuit  court  as 
the  basis  of  iis  decree,  in  which  we  accordingly  find  no  error. 

It  is,  accordingly,  affirmed. 
CovsLLT-Nicholas  V.  Adams,  2  Whart.  117;  Wells  v.  Tucker,  3  Bin- 
nev,  366:  Grvmes  v.  Hone,  49  N-  ^  17,  10  Am.  Rep.  313;  Henschel  v. 
Maurer,  69  Wis.  576;  Scott  v.  Lauman,  104  Pa.  St.  593;  Lu-nb-gler  - 
Gourlev,  51  Pa-  St.  345-  S6  Pa.  St.  .66,  94  A--  Dec^Si ;  Smith  v  Dor- 
sev  ^S'lnd.  451,  10  Am.  Rep.  118;  Trorlicht  v.  We.zeneckcr,  I  Mo. 
(App.)  482;  Curtis  V.  Portland  Sav.  Bk.,  77  Me.  151,  5^  Am.  Rep  75°; 
DarLid  V.  Taylor.  ,^  la.  503.  35  Am.  Rep.  .55;  Ellis  v.  Secor  3.  M-ch 
1S5,  18  Am.  Rep.  178;  Stephenson  v.  King,  81  Ky.  425,  5o  Am.  Rep.  172  , 
Mcbord  V.  McCord,  77  Mo.  166,  46  Am.  Rep.  9;  Walter  v.  Ford,  74 
Mo.  195. 


(b)    by  sale. 

7.     The  General  Principles. 

§  64.    Sale  or  bailment. 

BRETZ  V.  DIEHL. 

[117  Pa.  St.  589.] 

Supreme  Court  of  Pennsylvania,  1888. 

Ci  ark.  J.— The  defendants  in  this  case  are  judgment  cred- 
itors of  William  D.  Newman,  a  miller  operating  a  steam  flour- 
in-  mill  in  the  town  of  Bedford.  Having  issued  executions  they 
levied  on  some  eighty  or  ninety  barrels  of  flour  and  some  bran 
found  on  the  floor  of  Newman's  mill.  The  plaintiffs  claimed 
the  property  levied   upon,  alleging  that  it  was  the  product  of 


IL  PROPERTY. 

iecause  the  condi- 
r,  is  a  subsequent 
be  returned  if  the 
e  gift  is  executed, 
1  of  the  donor  has 
lition  annexed  by 
:,  which  must  hap- 
ntingcncy  conteni- 
be  executed  in  his 
ffect. 

the  circuit  court  as 
ngly  find  no  error, 
ordingly,  affirmed, 
ells  V.  Tucker,  3  Bin- 
ep.  313;  Henschel  v. 
;.  593;  Lusenbigler  v. 
;c.  51 ;  Smith  v.  Dor- 
VVeizenecker,  I  Mo. 
[51,  52  Am.  Rep.  750; 
Ills  V.  Secor,  31  Mich. 
425,  50  Am.  Rep.  172  ; 
9;  Walter  v.  Ford,  74 


BRETZ    V.   DIEHL. 


335 


!es. 


ta, 


1888. 


!  are  judgment  cred- 
rating  a  steam  flour- 
ssued  executions  they 
flour  and  some  bran 
le  plaintiffs  claimed 
it  was  the  product  of 


grain  by  them  delivered  to  and  held  by  Newman  as  their  bailee. 

This  is  a  feigned  issue,  framed  under  the  sheriff's  interpleader 

act  to  determine  the  dispute. 

The  plaintiffs,  who  are   farmers  residing  in  the  vicmity  of 

Bedford,  brought  their  grain  tu  this  mill ;  no  special  contract 
or  arrangement  was  made  with  th.  miller  by  any  of  the  plam- 
tiffs  when  they  delivered  their  wheat,  but  in  accordance  with 
the  practice  of  the  mill  in  all  cases,  except  when  wheat  was  at 
once  paid  for,  a  receipt  or  memorandum  was  given  in  the  fol- 
lowing form: 

Crystal  Mills,  Bedford,  Pa. 

Sept.  13,  18S4. 

Received  from  D.  W.  Lee: — 

Amount. 

Four  hundred  and  fifty-five  14-60  bu.  wheat        -        $455  '4 

"    rye 

Two  hundred  and  fifty-five  12-33  bu.  corn 

"     oats 
"     buckwheat  255   12 

„  t  ^„u  W.  D.  Newman. 

For  use  of  self.  >y  .  ^ 

The  mill  was  not  arranged  to  keep  the  several  lots  of  gram 
in  separate  parcels.     It  was  so  constructed  that  all  the  gram 
delivered  into  it  was  hoisted  to  the  second  floor,  emptied  into  a 
sink  on  the  first  floor,  and  from  thence  carried  by  elevators  mto 
a  bin  on  the  third  floor,  where  at  times  there  was  a  large  accu- 
mulated  mass  of  wheat.     Newman  also  purchased  wheat  in 
considerable  quantities  from  time  to  time  which  was  delivered 
into  the  mill  and  disposed  of  as  the  other  wheat.     This  promis- 
cuous commingling  of  the   grain   into  a  common  mass  was  in 
accordance  with  the  known  usage  of  the  mill,  which  was  sup- 
plied for  grinding  from  the  mass  of  the  wheat,  without  any  dis- 
crimination as  to  the   several   lots  or  parcels  in   which  it  was 
received       The  miller  was,   of  course,  under  no  obligation  to 
restore  to  the  plaintiffs  the  specific  or  id.  ntical  wheat  which  he 
received  nor  the  product  of  it  in  flour;  indeed,   this,   owing  to 
the  manner  in  which  the  business  was  conducted,  was  practically 

impossible.  ,       j         „i^ 

The  fundamental  distinction  between  a  badment  and  a  sale 

is  that  in  the  former  the  subject  of  the  contract,  although  in  an 

altered  form,  is  to  be  restored  to  the  owner;  whilst  in  the  hit- 


33^ 


MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 


ter  there  is  no  obligation  to  return  the  specific  article;  the  party 
receiving  it  is  at  liberty  to   return   some  other  thing  of  equal 
value  in  place  of  it.     In  the  one  case  the  title  is  not  changed,  in 
the  other  it  is,  the  parties  standing  in  the  relation  of  debtor  and 
creditor.     Thus  in  Norton  v.  Woodruff,  3  N.  Y.  153,  a  miller 
acrreed  to  take  certain  wheat  and  to  give  one  barrel  of  superfine 
flour  for  every  4  36-60  bushels  thereof,  the  flour  to  be  delivered 
at  a  fixed  time,   or   as   much  sooner  as  he  could  make  it.     As 
the  miller's  contract  was  satisfied  by   a  delivery  of  flour  from 
any  wheat,  the  transaction  was  held  to  be  a  sale.     But  in  I^Iall- 
i-oy  v    Willis,  4  Id.  76,  wheat  was   delivered  under  a  contract 
-to  be  manufactured    into  flour,"  and   one  barrel  of  the  flour 
was  to  be  delivered  for  every  4   15-60  bushels  of  wheat;  this 
transaction  was  by  the  same  court  held  to  be  a  bailment. 

If   a  party   having  charge  of  the  property  of  others  so  con- 
founds it  with   his   own  that  the  line  of  distinction  can  not  be 
traced,  all   the  inconvenience  of  the  confusion  is  thrown  upon 
the  party  who  produces   it;  where,    however,   the  owners  con- 
sent to  have  their  wheat  mixed  in  a  common  mass,  each  remains 
the  owner  of  his  share  in  the  common  stock.     If  the  wheat  is 
delivered  in  pursuance  of  a  contract  for  bailment,  the  mere  fact 
that  it  is  mixed  with  a  mass  of  like  quality,  with  the  knowledge 
of  the  depositor  or   bailor,    does  not   convert  that  into  a  sale 
which  was  originally  a  bailment,    and  the  bailee  of  the  whole 
can   of  course,  have  no  greater  control  of  the  mass  than   if  the 
share  of  each  were  kept  separate.     If  the  commingled  mass  has 
been  delivered  on  simple  storage,  each  is  entitled  on  demand  to 
receive  his  share  ;  if  for  conversion  into  flour,  to  his  proper  pro- 
portion of  the  product.     Chase  v.  Washburn,  i  Ohio  St.  244, 
cq  Am     Dec.   623;  Hutchison  v.  Commonwealth,  b2  1  a.  bt. 
472      It  makes  no  difference  that  the  bailee  had  in  like  manner 
conUibuted  to   the   .^nass  of  his  own  wheat;  for  although  .the 
absolute   owner  of  his  own  share,  he  still  stands  as  a  bailee  to 
the  others,  and  he  can  not  abstract  more  than  that  share  from 
the  common  stock  without  a  breach  of  the  bailment,  which  will 
subject  him,  not  only  to  a  civil  suit,  but  also  to  a  criminal  pros- 
ecution.    Hutchison  v.  Commonwealth,  supra. 

But  where,  as  in  Chase  v.  Washburn,  suj>ra,  the  under- 
standing  of  the  parties  was  that  the  person  receiving  the  grain 
might  take  from  it  or  from  the  flour  at  his  pleasure,  and  appro- 


UOPERTY. 

iclc;  the  party 
hing  of  equal 
lot  changed,  in 
I  of  debtor  and 
.  153,  a  miller 
el  of  superfine 
to  be  delivered 
1  make  it.     As 
J  of  flour  from 
But  in  Mau- 
nder a  contract 
rrel  of  the  flour 
of  wheat ;  this 
ailment. 
[  others  so  con- 
tion  can  not  be 
is  thrown  upon 
he  owners  con- 
ss,  each  remains 
If  the  wheat  is 
it,  the  mere  fact 
1  the  knowledge 
that  into  a  sale 
lee  of  the  whole 
lass  than   if  the 
ingled  mass  has 
id  on  demand  to 
)  his  proper  pro- 
I  Ohio  St.  344, 
;alth,  S3  Pa.  St. 
d  in  like  manner 
for  although  .the 
ds  as  a  bailee  to 
that  share  from 
ment,  which  will 
I  a  criminal  pros- 
i. 

mpra,  the  under- 
ceiving  the  grain 
:»sure,  and  appro- 


nRETZ    V.   DIEHL. 


337 


priate  the  same  to  his  own   use,  on  the  condition  of  his  procur- 
Ing  other  wheat  to  supply  its   place,    the  dominion   over  the 
property  passes  to  the  depositary,  and  the  transaction  is  a  sale 
and  not  a  bailment.     To  the  same  effect  are  Schindler  v.  \V  est- 
over,  99  Ind.  395  5  Richardson  v.  Olmstead,  74  TH-  3 13?  "'^''^y 
V.  Beresley,  87  Id.  556;  and  Johnston  v.  Browne.  37  Iowa  200. 
In  Lyne  v.  Lenon,  106  Ind.  567,  the  distinction  is  thus  stated : 
-If  the  dealer  has  the  right,  at  his  pleasure,  either  to  ship  and 
sell  the  same  on  his  own  account  and  pay  the  market  price  on 
demand,   or  retain  and  redeliver  the  wheat,  or  other  wheat  in 
the  place  of  it,  the  transaction  is  a  sale.     It  is   only   when  the 
bailor  retains  the  right  from  the  beginning  to  elect  whether  he 
will  demand  the  redelivery  of  his  property  or  other  of  like  qua  - 
itv  and  grade,  that  the  contract  will  be  considered  one  of  bail- 
ment     If  he  surrender  to  the  other  the  right  of  election,  it  will 
be  considered  a  sale,   with  an   option  on  the  part  of  the  pur- 
chaser  to  pay  either  in  money  or  property,  as  stipulated.     The 
distinction  is:    Can  the   depositor,  by   his  contract,  compel  a 
delivery  of  wheat,  whether  the  dealer  is  willing  or  not?     If  he 
can,  the  transaction  is  a  bailment.     If  the  dealer  has  the  option 
to  pay  for  it  in  monev  or  other  wheat,  it  is  a  sale.         i his  dis- 
tinction is  drawn,  of  course,  with  reference  to  cases  where  grain 
is  deposited  in  a  mass,  as  in  grain  elevators,  etc. 

There  are  cases  in  which  the  doctrine  of  bailment  has  been 
carried  much  beyond  the  rule  recognized  in  the  cases  we  have 
cited.  See  Sexton  v.  Graham,  53  Iowa,  iSi,  and  Nelson  v. 
Brown,  S3  W-  555-  ^e  think,  however,  the  rule  recognized 
in  Chase  v.  Washburn,  supra,  and  Lyne  v.  Lenon,  .«/m,  is  a 
safe  one,  and  is  more  in  accord  with  the  well  settled  principles 
of  the  law  relating  to  bailment.  • 

But  in  the  case  at  bar  we  are  not  called  upon  to  say  what 
would  be  the  effect  upon  the  transaction  if  Newman  had  author- 
ity  in  the  regular  course  of  dealing  to  ship  or  sell  the  wheat  of 
hfs  customers  on  his  own  account.  Undoubtedly  he  had  a  r.gh 
to  sell  of  the  grain  or  flour  to  the  extent  of  his  own  share ;  that 
is  to  say,  what  he  contributed  to  the  common  stock  and  the  tolls 
to  which  he  was  entitled.  But  the  jury  has  found  that  he  had 
no  authority  whatever  to  sell  or  to  abstract  from  the  common 
stock  beyond  the  amount  to  which  he  was  himself  entitled.  In 
the  general  charge,  and  also  in  the  answers  to  the  points  sub- 
33 


33S       MODES  OK  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

n^Uted,  the  learned  court   instructed   the  jurors   in  the  clearest 
Tanc    that  if  they  should   find  from   the  evidence  that  New 
"an,  bv  the  nature  of  his   dealings  with  the  several  phunt.ffs, 
Td  ac<  uired  such  don.inion  over  their  wheat  as  authon.ed  h.m 
a   his  pleasure,  not  only  to  grind  it  into  flour,  bnt  also  to  s 
the  same  for  his  own  use,   the   transaction  must  ncccssardy  be 
veated  as  a  sale,   and    that,   in   that  event,  the  plan.t.fs  could 
not  recover.     This   instruction  was  repeated  with  marked  em- 
phasis several  tir..s  during  the  progress  of  the  charge,   and  ,t 
Lms  quite  impossible  that  the  jury  could  have  labored  under 
any  misapprehension  as  to  the  nature  of  the  incjuiry  they  were 
t^  m^ke      The  verdict   of  the  jury  was  for  the  plamt.ffs;  and 
ve  must" assume  the  facts  which  it  is  plain  the  jury,  in  arr.vmg 
•U  such  a  verdict,  must  have  found,  viz.,  that  Newman  had  no 
'authority  to  sell    the  grain   delivered   into   his  m,  1    under  the 
annngement  with  the  plaintiffs,-that  is  to  say,  the.r  share  of 
the  common  stock,  nor  the  flour  which  was  the  product  thereof^ 
It  was  the  plain  duty  of  Newman,  however,   to  see   to  it  tha 
at  all  times  the  mill  contained  wheat  or  flour  sutticent  m  amount 
to  answer  all  demands  under   the  bailment;   failing  m  tn.s,  he 
was  derelict  in  duty,  and  liable  under  the  law  for  the  appropri- 
ation and  conversion  unto  his  own  use  of  property  which  d.d 

not  belong  to  him.  . 

Nor  do  we  see  that   the   court    committed  any  error  in  the 
answers  to  the  plaintiff's  points.     These  points,    according   to 
the  general  practice,  were  based  upon  an  assumption  of  facts, 
the  Truth  or  falsity  of  which  was  for  the  jury,   and   a  law  was 
stated  as  upon  a  finding  of  these  facts  by  the  jury.     They  we.-e 
relevant  to  the  issue;    they  disclosed  clearly  the  specific  facts 
assumed  which  were  fairly  and  reasonably  consistent  with  the 
nPuntiff's  theory  of  the  case  upon  the  evidence,  and  the  opinion 
of  the  court  thereon  could  not  have  had  any  weight  with   the 
Jurors   in   their   deliberations  unless  the  facts  assumed  were  m 
heir  judgment  established  by  the  proofs.     The  points  certainly 
vvere  not  such  as  could  b.  disregarded  by  the  court  and  we  can 
not  see  how  the  answers  thereto   could  be   supposed   to  have 

misled  the  jury.  i  •      *i  „ 

The  learned  court  defined  a  bailment  and  a  sale,  marking  the 

distinguishing  features  of  each  and  as  the  nature  of  the  trans^vc- 

tion  depended  not  wholly  upon  the  written  receipt,  but  m  part 


PROPERTY. 

in  the  clearest 
ence  that  Ncw- 
evcval  phuntiffs, 
s  authorized  him 
•,  but  also  to  sell 
it  necessarily  be 
;  plaintiffs  could 
vilh  marked  em- 
e  charge,  and  it 
k-e  labored  under 
iquiry  they  were 
le  plaintiffs;  and 
:  jurv    'n  arriving 
Newman  had  no 
s  mill    under  the 
ay,  their  share  of 
J  product  thereof 
to  see   to  it  that 
ifficient  in  amount 
failing  in  this,  he 

for  the  appropri- 
operty  which  did 

A  any  error  in  the 
iits,  according  to 
isumption  of  facts, 
',   and   a  law  was 

jury.  They  were 
I  the  specific  facts 
;onsistcnt  with  the 
ce,  and  the  opinion 
f  weight  with  the 
ts  assumed  were  in 
?he  points  certainly 
e  court  and  we  can 

supposed   to  have 

a  sale,  marking  the 
iture  of  the  transac- 
reccipt,  but  in  part 


LOOMIS    V.   nUAGG. 


339 


on  verbal  evidence  as  to  the  method  of  conducting  the  busuu-ss 
the  c.uestion  was  undoubtedly  one  proper  to  be  subm.tted  to 
he  jury.      The   court   instructed   '.ne   jury  that  if   certam    ac  s 
existed,  the  trans.uicn  "-^  .  sale;   otherwise  it  was  but  a  bad- 
n.ent;  and  the  c.uestion  was  proper  for  the  jury  whether  or  no 
under  the  instruction  of  the  court,  according  to  the  facts,  as  the 
iury  might  tind  them,  the  transaction  was  a  bailment  or  a  sale 
On  a  carc-fid  review  of  the  whole  case  we  find  no  error  and 
the  judgment  is  alVirmcd. 

CoNsm.T-Chase  V.Washburn,  i  Ohio  St.  244,  59  A>".  "ec  623; 
Foste^  V.  Pettibone,  7  N.  V.  4331  Woodward  v.  Seemans  125  Ind_  330, 
o,  tm  St  Rep  25;  Powder  Co.  v.  Hurkhardt,  97  I'-  ^-  ^^^'  ^'^^^'^ 
A  land  Mll'co  4.;Mo.(App.)3i;  Cushing  v.  Breed,  14  Mien, 
rl  \m  ec  777  Kice  v.  Nixon,  97  1"^-  97,  106,  49  Am.  Kep.  730; 
SSrd  :  mbbard:  '48  Mich.  4.1.  4^  A-  I^ep.  474;  »oie  v.  Ohnstead, 
36  111.  J.50,  85  Am.  Dec.  397- 


§  65.    Sale  or  lease. 

LOOMIS  V.  BRAGG. 

[50  Conn.  228;  47  Am.  Rep.  639.] 

Supreme  Court  of  Errors  of  Connecticut,  1882. 

Park,  C.  J— This  suit  grows  out  of  the  following  contract 
between  the  parties: 

u  Agreement  between  C.  M.  Loomis,  of  New  Haven,  Conn., 
and  James  D.    Bragg,    of   Bridgeport,    Conn.     Said    Loomis 
agrees  to  rent  and  said  Bragg  agrees  to   hire,   one   Alber    W. 
Ladd  &  Co.  piano,  No.   1S07,   price  $140   (cash   $5,  balance 
§1,0  for  the  term  of  twenty-seven  months  from  the  fifth  day 
of  January,  iSSi,  at  the  rent  of  $5  per  month,  payable  on  the 
fifth  day  of  each  month,  in  advance.     And  it  is  agreed  that  if 
the  rent   and   interest  shall  be   paid  punctually   according  to 
a<neement,  said  instrument  shall  b.  the  property  of  sa:d  Bragg 
■U  the  end  of  said  term.     And  further,  if  said  Bragg  shall  neg- 
lect to   pay  the  rent   and  interest  falling  due  at  any  t.me  saul 
Loomis  shall  be  at  liberty  any  time  to  enter  the  dwelhng  house 
or  premises  where  said  instrument  may  be  and  take  s«'d  jn^tru; 
ment   into  his   possession   and  the   money   already   paid  shall 


3|0       MODKS  OF  OT.TAININO  TITLE  TO  PEUSONAI.  PROPKRTY. 

belong  to  said  Loomis.  And  said  Brags  is  held  responsible 
for  all  damages,  except  the  usual  wear  and  tear  and  to  pay  all 
taxes  and  insurance  on  said  instrument.  The  same  is  not  to  be 
removed  from  the  place  of  delivery  without  permission  from 
said  Loomis.     Dated  at  Bridgeport,  Jan.  5,  1S81." 

The  instrument  was  delivered  by  the  plaintiff  and  monthly 
installments  were  paid  by  the  defendant  under  the  contract  up 
to  the  month  of  May  of  the  same  year,  when  the  defendant 
made  default  of  payment  and  continued  to  do  so  till  the  month 
of  October  following,  when  he  absolutely  refused  to  go  further 
under  the  contract  and  notified  the  plaintiff  to  remove  the 
piano,  which  was  done.  During  the  time  that  default  of  pay- 
ment was  being  made  the  defendant  orally  renewed  h.s  original 
promise  whenever  a  payment  became  due  and  in  consequence 
of  this  the  plaintiff  suffered  the  piano  to  remain  in  his  posses- 
sion notwithstanding  the  default. 

These  facts  are  set  forth  in  the  plaintiff's  complaint  to  which 
the  defendant  demurred ;  and  the  question  is,  do  they  sustain 
the  claim  for  damages  made  in  the  first  count  of  the  complaint? 
Or  do  they  support  the  second  count,  which  claims  a  reasonable 
sum  as  compensation  for  the  use  of  the  piano  during  the  time 
not  covered  by  his  payments,  that  the  defendant  had  the  use  of 
it?  Or  do  they  sustain  the  plaintiff's  claim  that  the  defendant 
shall  pay  the  unpaid  installments  provided  for  in  the  contract 
as  set  forth  in  the  third  and  last  count.? 

The  contract  upon  which  the  complaint  is  based  purports  to 
be  a  renting  of  the  piano  for  the  term  of  twenty-seven  months 
at  the  rate  of  $5  per  month,  but  in  fact  it  is   an   agreement  to 
sell  the  piano  at  the  end  of  twenty-seven  months,   when  the 
sum  of  $135  shall  have  been   paid   in  monthly  installments  of 
$S  each,  together  with  certain  interest,  upon  condition  that  if, 
at  any  time,  the  defendant  shall  make  default  of  payment  when 
any  installment  or  the  interest  upon  the  unpaid  balance  shall 
become  due,  the   plaintiff  shall  have  the  right  to  rescind  the 
contract  and  take  the  piano  back  into  his  possession,  and  that 
whatever  sum  shall  have  been  paid  shall  become  the  property 
of  the  plaintiff.     The  contract  is  similar  in  all  essential  respects 
to  that  in  the  case  of  Hine   v.   Roberts,  48   Conn.  267;  s.  c, 
40  Am.  Rep.  170;  the  only  difference  being  that  in  that  case 
a  melodeon  valued  at  the  sum  of  $50  and  a  note  for  $140,  pay- 


•nOPEUTY. 

Id  responsible 
md  to  pay  all 
me  is  not  to  be 
rmission  from 
I." 

i  and  monthly 
he  contract  up 
the  defendant 
till  the  month 
d  to  go  further 
to  remove  the 
default  of  pay- 
wed  his  original 
in  consequence 
n  in  his  posses- 

iplaint  to  which 
do  they  sustain 
'  the  complaint? 
ims  a  reasonable 
during  the  time 
it  had  the  use  of 
it  the  defendant 
r  in  the  contract 

ased  purports  to 
ity-seven  months 
m  agreement  to 
onths,  when  the 
y  installments  of 
;ondition  that  if, 
jf  payment  when 
lid  balance  shall 
ht  to  rescind  the 
ssession,  and  that 
)me  the  property 

essential  respects 
Conn.  267;  s.  c, 

that  in  that  case 
ote  for  $140,  pay- 


LOOMIS    V.   IIUAGG. 


34 » 


.ble  at  a  future  day,  were  given   for  what   the  contrac    te  m  d 
„t      The  court  held  the  contract  to  be  an  agreement  fo.  th. 
de'of    be  organ   when   the   contract  price   for  ,t  should  ha^^ 
n  paid.     So  here  the  terms  of  this  contract  are  n.cons.stent 
S  Lse  of  a  lease,  but  are  consistent  with  those  of  a  cond>- 
o    d  sale.     The  sum  to  be  paid  is  the  entire  present  value  of 
rl^o;  that  is  $Mo.     That  sum,   with  the  interest,  .s  to  be 
:  id   n  a    ittle  more  than  two  years,  when  the  instrument  wou^d 
early  as  valuable  as  it  was  at  the  outset.     It  .s  mcred  b le 
ha   teclefendant  would  be  willing  to  .ay   -/-'/'- ^"^.^ 
.  .    of  the  instrument  in  so  short  a  time,  or  that  the  plamfff 
^V.  r.,nicious  enough   to   demand  it.     Indeed,  the   fact 
r:U.    plan    ::::iy  ti:eLntract  to  be  the   defendant's  when 
h    lornt  should  be  paid  shows  decisively  that  the  monthly 
urns  were  to  be  paid,  not  as  rent,  but  as  the  purchase   pr.ce 
Chermore,  it  was  thought  important  by  the  pla.nt.ff  tha    . 
™id  be  provided  that  if  the  defendant  should  at  any  t.me  fad 
,^y  the'stipulated  sums  when  due  he  should  los.  the  p.ano 
;„    that  all  that  had  been  pa.d  should  belong  to  the  plan,t,« 
There  was  no  necessity  for  this  if  the  contract  was  a  lease  ot 

^'wTtS  it  clear  that  the  parties  stipulated  for  a  conditional 
1    «f  the  Diano    leaving  the   sale  to  be  consummated  ni  the 
;: Le  whenrrurchase  pHce  should  be  paid      The  plaintiff  had 
hi   ns^ument  to  sell,  the  defendant  desired  to  purchase  >t  but 
wL  un  blTto  pay  th^  entire  price  on  the  delivery  of  the  prop- 
In        The  plaintiff  was  unwilling  to  give  credit  so  the  arrange- 
n^ent  under  consideration  was  made  by  which  the  plamt.ff  vv^ 
eTbled  to  accomplish  his  object  by  a  conditional   sale   and  be 
t  and  the  defendant  to   have  the  use  of  the  p.ano  and  pay 
oii  in  small  sums  at  stated  times  according  to  h>s  ab.bty. 

Such  was  the  contract ;  and  now  we  are  to  consider  the  r.ghts 
of  the  parties  under  it.  The  defendant  failed  to  perlurn.  .t. 
He  Ide  default  of  payment  after  having  paid  a  number  of  n.- 
strilments  The  contract  provides  for  this  contmgency,  by  a 
^^Ttur  of  all  the  defendant's  rights  under  the  contract  and 
ofthe  sums  of  money  that  had  been  paid.    This  was  consKlered 

ffident  protection  by  the  ^^^-^^'''^:^':^^^ 
weement,forhe  provided  nothmg  further.     The   mstallmcnts 

"'reTo  be  paid  monthly.     They  exceeded  in  value  the  use  ot 


343     MonKs  OK  oivvAiN.Nc;  rrn.K  to  pkusonai.  .■uopkutv. 

the   piano  for  the   same    time.     Surely  tl,e  plaintiff  was  thor- 
ouKl^v  pr<,tc.cted.    Had  he  exerci  -eel  his  ri.^hts  when  the  defend- 
an'made  his  first  default  in  the  month  of  May,  th.s  controversv 
,,c.uld  never  have  arisen.     He  would    have   had    no   cause    o 
complain,     l^ut  it  is  said  that  he  indulged  the  defendant  o     h. 
promises  to  pay  the  installments   in  arrear,  until  the  month  o 
October,   although  he  continued   to   make   default  durm^  the 
time;   and  it  ,s  claimed  that  this  ,ives  him  the  n,dU  to  recove 
damages  for   a  breach  of  the  contract,  or  the  fa.r  value  of  the 
use  ot  the  piano  during  that  period,  or  the  installments  rema.n- 

ing  unpaid.  .,         .   .        ,   ■ , 

It  is  not  pretended  that  the  defendant  was  gudty  of  fraud    n 
,„akin<r  the  promises.     It  must  be  taken  that  they  were  made 
i    goo^  faiti,  for  the  contrary  is  not  alleged.   Do  they  alter  the 
case'     They   were  merely  the  repetition  of  what  the  contract 
stated.     The   defendant   in   it  promised   to  pay  all  the  insta  1- 
ments  as  thev  should  become  due.     Can  a  repetition  make  the 
pr..mise  stronger?     The    original  promise  is  suthc.ent  to  make 
the  defendant  pay  if  he    can  be  made  to  pay  at  all.     Besules 
this,  there  is  no  consideration  alleged  for   the  new  promises. 
Had  the  complaint  set  forth  that  when  each  default  was  made 
the  plaintiff  was  about  to  exercise  his  rights  under  the  contrac 
by  clainung  of  forfeiture,  when  the  defendant  proposed  that  >f 
the  plaintiff  would  forego  his  rights  he  would  pay  the  overdue 
inst  dlment,  and  the  plaintiff  so  agreed  and  granted  the  mdul- 
gcnce,  an.l  on  consideration  thereof  the   defendant   made  the 
promise,  a  different  case  would  have  been  presented.      rhe:e 
would  have  been  something  more  than  a  repetition  o    the  or.g.- 
nal  promise.     But  nothing  appears  in  the  complaint  beyond  the 
fact  that  the   defendant  made   the   promises,  and  the  phunt.ff, 
relying  upon  them,  left  the  piano  in  his  possession      For  aught 
that  appears,  nothing  was  said  by  the  plaintiff  to  the  defendan 
to  induce  him  to  make  the  promises.     It   does  not  appear  that 
he  made  any  disclosure  of  what  he   intended    to  do.     Conse- 
nuently  the  promises  are  left  wholly  without  consideration. 

We  think,  therefore,  that  the  demurrer  was  well  taken  to  the 
first  count  of  the  plaintiff's  complaint,  for  the  reason  that  the 
plaintiffs  remedy  is  set  forth  in  the  contract  He  should  have 
reclaimed  his  piano  on  the  first  default.  Indeed,  the  defend  nt 
had  the  option  by  the  contract  at   any    time    to    surrender  the 


'UorKIlTY. 

utiff  was  thor- 
len  the  dcfeiul- 
lis  controversy 
I  no  cause  to 
ifentlant  on  his 
I  the  month  of 
lult  clurin<Jt  the 
<rh\.  to  recover 
lir  value  of  the 
Imcnts  remaiu- 

ilty  of  fraud  in 
;hey  were  made 
»o  they  alter  the 
nat  the  contract 
y  all  the  inslall- 
tition  make  the 
tHcient  to  make 
at  all.     Besides 

new  promises. 
;fault  was  made 
ler  the  contract 
proposed  that  if 
pay  the  overdue 
ranted  the  indul- 
ndant  made  the 
■esented.  There 
tion  of  the  origi- 
Diaint  beyond  the 
and  the  plaintiff, 
ision.     For  aught 

to  the  defendant 
s  not  appear  that 
I  to  do.  Conse- 
onsideration. 
,  well  taken  to  the 
'i  reason  that  the 

He  should  have 
;ed,  the  defendant 

to    surrender  the 


ANOIIEWS    V.  DUKANT. 


343 


piano  and  lose  the  installments  he  had  paid.  There  could  be, 
rrefore,  no  claim  for  dan.ages  other  than  the  installments, 
which  the  plaintiff  already  had. 

We  think  also  that  the  demurrer  was  well  taken  to  the  sec 
ond  count,  for  the  reason  that  the  defendant  1-'^'  J  ^  P'-° 
„„dcr  a  special  contract  which  continued  n.  force  u.Ud  .1  wa 
:„,,„,U.red  in  the  month  of  October,  and  therefore  there  con  d 
,,c  no  implie,!  agreement.  An.l  for  the  same  reasons  we  flunk 
the  demurrer  was  well  taken  to  the  third  count 
There  is  no  error  in  the  judgment  appealed  from. 

Judgment  alhrmcd. 

Coxs.i,T-SinRer  Mfg.  Co.  v.  Cole,  4  T.ea,  437-  4»  '^^''^^'^^^^  "";. 
vev  V.  Loco.notive  Works,  93  U.  «•  664;  Greer  v,  ^'^f;'  ''^^  "^  j^''^', 
Latham  v.  Sumner,  89  HI-  233,  3-  A-"-  Rep.  79;  ^".1  e.  v.  ^"  ^m,  57 
Tex.  351,  44A-n.Rep.59S;  dinger  Mfg.  Co.  v.  Graham,  b  Oreg.  17, 
:;4  Am.  Rep.  572. 


§  66.    Executory  sales. 

ANDREWS  V.  DURANT. 

[II  N.  Y.  35;  <')i  Am.  Dec.  55.] 

Court  of  Appeals  of  Nczv  York,  1854. 

Appeal  from  a  judgment  of  the  supreme  court  sustaining  the 
claim  of  defendants  to  the  ownership  of  a  vessel.  The  vessel  was 
a  barge  in  process   ol   construction  under  a  wntten  agreemen 
hv  which  the  builders,  Bridger  &  Company,  were  to  provule  all 
materials  and  to  build  her  subject  to  the  inspect.on  and  approval 
of  the  superintendent  of  the  intending  purchasers  and  to  del.vet 
h  r  to  the  purchasers  on  a  day  specified.     The  purchasers  were 
o  pav  a  f^xed  price:   one   thousand  dollars  when  the  keel  was 
laiS,one  thousand  dollars  when  the  frame  was  up,  one  thousand 
do   ars  when  planked  and  calked,  and  the  balance  o    two  thou- 
latd  Liars  when  completed  and  ^^^livered.   Three  .nstalln^ens 
were  paid.     Before  the  completion  and  delivery  of  the  baige, 
the  builders  became  insolvent  and  the  ship  was  seized  by  the 
heriff  on  execution  for  a  debt  of  the  builders.  The  purchasers 
chiming  that  title  had  vested  in  them  as  the  work  progressed. 


311       MOliKS  OF  OUTAININO  TITLE  TO  PERSONAI.  PROPKIITV. 

replevied  her,  completed  her  at  a  cost  of  seven  hmidrod  doUais, 
and  treated  her  as  theirs.  Meantime,  the  builders  had  made  a 
general  assignment  for  the  l.enclit  of  creditors,  and  the  assignees 
now  l.rought  an  action  in  the  nature  of  trover  to  establish  their 
claim  to  the  ownership. 

Pr,>,.,„,  J._ln  general,  a  contract  for  the  building  of  a  ves- 
scl  or  other  thing  not  yet  in  esse  docs  not  vest  any  property  in 
the  party  for  whom  it  is  agreed   to  be   constructed   during  the 
progress  of  the  work,  nor  until  it  is  Hnished  and  delivered,  or 
at  least  ready  for  delivery   and   approved  by  such   party.     All 
the  authorities  agree  in  this.     Towers  v.  Osborne,  i  Stra.  506; 
Mucklow  v.   Mangles,    1   Taunt.    318;    Johnson   v.    Hunt,   11 
Wend.  139;  Crookshank  V.    Ihirrill,    18  John.    58;   .Sewall  v. 
Fitch,  8  Cow.  215;  Mixer  V.    Ilowarth,    21    Pick.    205.     And 
the  law  is  the  same  though  it  be  agreed  that  payment  shall  be 
made  to  the  builder  during  the  progress  of  the  work,  and  such 
payments   are   made   accordingly.     In  Mucklow   v.    Mangles, 
which  arose  out  of  a  contract  for  building  a  barge,  the  whole 
price  was  paid  in  advance,  the  vessel  was  built,   and  the  name 
of  the  person  who  contracted  for  it  was  painted  on  the  stern, 
yet  it  was  held  that  the  title  remained  in  the  builder.     In  Mer- 
ritt  V.  Johnson,  7  John.  473,  where  a  sloop  was  agreed  to  be 
built  and  one  third  of  the  price  was  to  be  paid  when  one  thud 
of  the  work  was  done,  two  thirds  when  two  thirds  were  done, 
and   the  balance  whe  1    it   was    completed,  and  before  it  was 
finished  it  was  sold  on  execution  against  the  builder  after  more 
than  a  third  had  been  done  and  more  than  that  proportion  of 
the  price  had  been  paid,  the  court  decided  that  the  vessel  was 
the  property  of  the  builder  and  not  of  the  person  who  engaged 
it  to  be  constructed. 

Where,  during  the  course  of  the  transaction,  the  vessel  or 
other  thing  agreed  to  be  built  is  identified  and  appropriated  so 
that  the  m^echanlc  would  be  bound  to  complete  and  deliver  that 
particular  thing,  and  could  not,  without  violating  his  contract, 
substitute  another  similar  article  though  otherwise  correspond- 
ing with  the  agreement,  there  would  seem  to  be  more  reason 
for  holding  that  the  property  was  transferred ;  still  it  has  never 
been  held  that  this  was  enough  to  pass  the  title.  In  Laidler  v. 
Burlinson,  2  Mees.  &  Welsh.  602,  the  vessel  was  about  one 
third  built  when   the    contract  was   made.     The  builder  and 


,  nioi'i'U  rv. 

hmulrod  dollars, 
ilcrs  hail  made  a 
ind  the  assij^m-es 
to  ctitablish  their 


uilding  of  a  ves- 
aiiv  property  in 
ictcd   during'  the 
tml  delivered,  or 
nich   party.     All 
rne,  i  Stra.  506; 
3on   V.    Hunt,   1 1 
1.    58;   Scwall  V. 
'ick.    205.     And 
payment  shall  he 
e  work,  and  such 
low   V.    Mangles, 
barge,  the  whole 
It,   and  the  name 
ted  on  the  stern, 
juilder.     In  Mer- 
was  agreed  to  lie 
id  when  one  third 
;hirds  were  done, 
and  before  it  was 
guilder  after  more 
:hat  proportion  of 
I  at  the  vessel  was 
rson  who  engaged 

on,  the  vessel  or 
i  appropriated  so 
te  and  deliver  that 
ating  his  contract, 
jrwise  correspond- 
to  be  more  reason 
;  still  it  has  never 
tie.  In  Laidler  v. 
ssel  was  about  one 
The  builder  and 


ANUltKWS    V,   nUUANT. 


315 


owners  agreed  to  finish   that   particular   vessel    In    a    manner 
specially  agreed  upon  for  a  price  which  was  the  eciuivalent  for 
tlie  linislii-d  vessel.     Ik-fore  it  was  completod  the  builder  became 
bankrupt,    and    the    possession    passed    into  the   hands   of   his 
assignee.      The  court  of   exchequer  held    the   true   construction 
of  tlie  contract  to  be  that  the  title  was  to  pass   when  the  ship 
was  completed   and   not  before.     The   parties  only   agreed  to 
buy  a  particular  ship  u'/icn  complete,  and  altlinugh  the  builder 
could  not  comply  with  the  contract  by  delivering  another  ship, 
still  it  was  considered  an  executory  contract  merely.     In  Atkin- 
son v.    IJell,   8   IJarn.   &   Cress.   277,    15  I^"g-  ^^^'  ^aw,  the 
same  principle  was  held   in  respect  to  a  contract  for  making 
spi.ming  machinery,  and  in  Clark  v.  Spence,  4  Adolph.  .S:  El. 
44S,  31  Eng.  Com.  Law,  which  is  the  case  principally  relieil 
on  by  the  defendants,  it  was   admitted   by  the   court  that  the 
appropriation   of    the   particular  ship  to  the  contract  then  in 
question,  by  the  approval  of  the  materials  and  labor  by  the 
superintendent,  did  not  of  itself  vest  the  property  in  the  pur- 
chaser until  the  whole  thing  contracted  for  had  been  completed. 
In  the  case  before  us,  it  can  not  be  denied  that  the  barge,  as 
fast  as  its  several  parts  were  finished,  with  the  approval  of  the 
superintendent,  became  specifically  appropriated  to  the  fulfill- 
ment  of    this   contract,  so  that  Bridger  h  Company  could  not 
ha^e  fulfilled  their  agreement  with  the  defendants  in  any  other 
way  than  by  completing   and    delivering   that    identical   boat. 
This   results   from    the  consideration  that  the   superintendent 
could  not  be  called  upon  to  inspect  and  approve  of  the  work 
and  materials  of  another  barge,   after   having  performed  that 
duty  as  to  one ;    so  that  the  contract  would  be  broken  up  unless 
it  applied  itself  to  this  vessel.     Hut  it  is  clear  that  this  circum- 
stance alone  does  not  operate  to  transfer  the  title.     The  precise 
question  ni  this  case  is  whether  the  concurrence  of  both  partic- 
ulars—the payment  of  parts  of  the  price  at  specified  stages  of 
the  work,  and  the  intervention  of   a   superintendent  to  inspect 
and  approve  of  the  work  and  materials— produces  a  result  which 
neither  of  them  separately  would  effect.     It  is,  no  doubt,  com- 
petent for  the  parties  to  agree  when  and  upon  what  conditions 
the  property  in  the  subject  of  such  a  contract  shall  vest  in  the 
prospective  owner.     The  present  question  is,  therefore,  simply 
one   of    construction.     The  inquiry    is  whether  the  parties  in- 


346       MODES  OF  OBTAUJIXG    TITLE  TO  PERSONAL  PROPERTY. 

tended  by  the  provisions  which  they  have  inserted  in  their  con- 
tract, that  as  soo.i  as  the  first  payment  had  become  payable  and 
had  been  paid,  the  property  in  the  nnfinished  barge  shonld  vest 
in  the  defendants,  so  that  thereafter  ^  should  be  at  their  risk  as 
to  casualties  and  be  liable  for  their  debts,  and  pass  to  their  rep- 
resentatives in  case  of  their  death.  Such  an  agreement  would 
be  lawful  if  made,  and  the  doubt  only  is  whether  the  parties 
have  so  contracted. 

The  courts  in  England,    under    contracts  in  all  material  re- 
spects like  this,  have  held  that  the  title  passed.     In   Woods  v. 
Russell,  5  Barn  &  Aid.  943,  7  Eng.   Com.  Law,  the  question 
came  before  the  Court  of  King's  Bench,  and  Abbot,  C.  J.,  dis- 
tinctly declared  his  opinion  that  the  payment  of  the  installments 
under  such  a  contract  vested  the   property  in  the  ship  in  the 
party  for  whom  it  was  to  have  been  constructed.    But  there  was 
another  feature  in    the  case  upon  which  it  was  finally  decided. 
The  builder  had  signed  a  ce/Hticate  for  the  purpose  of  enabling 
the  other  party  to    procure   the   vessel  to  be    registered  in  his 
name,  and  it  was  so  registered  accordin,T;ly  while  it  was  yet  un- 
finished and  before  the  question  arose.     The  court  held  that  the 
legal  effect  of  signing  the  certificate  for  the  purpose  of  procur- 
ing  the  registry  was,  from  the  time  the  registry  was  complete, 
to  vest  the  general  property  in  the  party  contracting  to  have  the 
ship  built.     This  case  was  decided   in   1S22,  and  was  the  first 
announcement   of    the  principle   upon   which  the   defendants' 
covnsel  rely  in  the  English  courts.    The  case  of  Clark  v.  Spence 
was  decided  in  1S36.     It  arose  out  of  a  contract  tor  building  a 
v>ssel,   which  contained   both  the  features  of  superintendence 
and  of  payments  according  to  specific  stages  of  the  work,  as  in 
Woods  V.  Russell,  and  as  in  the  co.itract  now  before  the  court. 
The  court  of  King's  Bench  was  clearly  of  opinion  that  as  fast 
as  the  diffeient  parts  of  the  vessel  were  approved  and  added  to 
the  fabrip  they  became  appropriated  to  the  purchaser  by  u^ay  of 
contract,  and  that  when  the  last  of  them  were  so  added  and  the 
vessel  was  thereby  completed  it  vested  in  ihe  purchaser.     The 
court  conceded  that  by  the  general  rules  of  law,  until  the  last  of 
the  necessary  materials  was  added,  the  thing  c  ntracted  for  wag 
not  in  existence  ;  and  they  said  they  had  not  been  able  to  find  any 
authority  for  holding  that  while  the  article  did  not  exist  as  a  whole 
and  was  incomplete,  the  general  proper t;.  in  such  parts  of  it  had 


^yi 


SONAI.  PROPERTY. 

inserted  in  their  con- 
d  become  payable  and 
shed  barge  should  vest 
nild  be  at  their  risk  as 
,  and  pass  to  their  rep- 
;h  an  agreement  would 
is  whether   the  parties 

lets  in  all  material  re- 
passed.    In   Woods  V. 
om.  Law,  the  question 
and  Abbot,  C.  J.,  dis- 
lent  of  the  installments 
:rty  in  the  ship  in  the 
tructed.    But  there  was 
1  it  was  finally  decided, 
he  purpose  of  enabling 
to  be    registered  in  his 
^ly  while  it  was  yet  un- 
The  court  held  that  the 
the  purpose  of  procur- 
registry  was  complete, 
contracting  to  have  the 
1S22,  and  was  the  first 
which  the   defendants' 
case  of  Clark  v.  Spence 
contract  tor  building  a 
ures  of  superintendence 
tages  of  the  work,  as  in 
;t  now  before  the  court, 
of  opinion  that  as  fast 
approved  and  added  to 
the  purchaser  l>y  way  of 
n  were  so  added  and  the 
in  'die  purchaser.     The 
s  of  law,  until  the  last  of 
thing  c  ntractcd  for  wag 
not  been  able  to  find  any 
le  did  not  exist  as  a  whole 
t'.  in  such  parts  of  it  had 


ANDREWS    V.    DURANT. 


347 


been  from  time  to  time  constructed  should  vest  m  the  pu,  ha  er 
except  what  was  said   in   the   case  of   Woods  v.  Russell ;   and 
hat  was   admitted  to   be  a  dictum  merely,  and   not  the    po-nt 
on   which   the    case   was   decided.      The  court     however,  de- 
cided  upon  the  authority  of  that  case,  though  w.th  some  hes.ta- 
ion.  as  they  said,  that  the  rights  of  the  parties  m  the  case  before 
it,  after  the  making  of  the  first  payment,  were  the  --«  ^s  .f  ^o 
n  uch  of  the  vessel  as   was  then  constructed  had  ^-^^y"^ 
,on<.ed  to  the  party  contracting  for  its  construct.on  and  had  been 
a    n,ered  by  him  to  the  builder  to  be  added  to  and  finished  ;  and 
n.v  sai<l  it  would  follow  that  every  plank  and   article  st.bse- 
'uently  added  would,  as  added,  become    the  property  o    the 
rty  contracting  with  the  builder.     The  dictum  u.  Woods  v. 
Ls sell  was  incidentally  referred  to  as   the  law  m  Atunson  v 
Bei!,  S  Barn  &  Cress.   ^^^.   :5  Eng.  Com.  Law,  and  the  doc- 
trine   there    stated,    and  confirmed   in   Clark   v.    Spence,   was 
nssumed  to  be  correct  iaLaidler  v.  Burlinson,  before  reterred  to. 
it  has  also  been    gc-rally    adopted   by  systematic    ..iters  m 
treatises   published   u,     evised   since   the  decision  of  Clark  ^ 
Spence,  that  case  and  Woods  v.  Russell  being  always  referred 
„!  the  authority  on  which  it  rests.     Story  on  Sales,  sees.  3x5, 
V6;   Chit,  on  Cont.  37^-9;  Abbot  on  Ship.  4,  5-  , 

^  It  is  scarcely  necessary  to  say  that  the  English  cases  since  the 
Revolution  are  not  regarded  as  authority  in  our  -"Vts.     L  pon 
disputed  doctrines    of  the  common    law    they   are    en  .tied    to 
respectful  consideration;  but  where  the  question  relates  to  the 
construction  or  effect  of  a  written  contract,  they  have  no  greater 
weight  than  may  be  due  to  the  reasons  given  :n  their  support. 
Can  it  then  be  fairly  collected  from  the  provisions  of  this  con- 
S  t  thtt  the  title  to'the  unHnished  barge  was  to  be  transferred 
from  the  builder  to  the  other  party  upon  the  making  of  the  b  st 
ayment,  contrary  to  the  principle   well   settled  and   geneially 
nlTrsto^d  that  a  contract  for  the  construction  of  an  ai tick  . .t 
existence  is  executory  until  the  thing  is  finished,  and  r.^dy 
for  delivery  ?     In  the  first  place,  I  should  say  that  so  marked 
circumstance  would  be  stated  in  words  of  -equivocal  im^w 
and  would  not  be  left  to  rest  upon  the  construe  .on,  .f  a  change 
o    property  was  really   intended.     The    provision   for  superni- 
tendence  by  the  ageni  of  the  intended  owner,  though  .t  serves 
iden   fy  and  appropriate  the  article  as  soon  as  .t.  construct.on 


34S       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTV. 

is  commenced,  does  not,  as  we  have  seen,  work  any  change  of 
property.     Such  would  not   ordinarily  be  the  intention  to  be 
deduced  from  such  a  circumstance.     Many  of  the  materials  of 
which  a  vessel  is  composed  are  ultimately  covered  so  as  to  be 
concealed  from  the  eye  when  it  is  finished  ;  and  ftS  the  safety  of 
life  and  property  is  concerned  in  the  soundness  and  strength  of 
these  materials,  it  is  but  a  reasonable  precaution  to  be  taken  by 
one  who  engages  a  vessel  to  be  constructed,  to  ascertain  as  the 
work   progresses  that  everything   is  staunch  and  durable ;   and 
such  a  provision,  as  it  seems   to  me,  does  not  tend  to  show  a 
design  that  there  shall  be  a  change  of  property  as  fast  as  any 
materials   or  work   are   inspected    and  approved.     It  amounts 
only  to  an  agreement   that  when  the  whole  is   completed  the 
party  will  receive  it  in  fulfillment  of  the  contract.     The    provi- 
sion for  advances  at  particular  stages  of  the  work  is  a  very  usual 
one  where   an  expensive  undertaking  is  contracted  for,  and  it 
only  shows  that  the  party  advancing  is  willing  thus  to  assist  the 
artisan,  provided  that  he  can  see  that  the  work   is  going  on  in 
good  faith,  so  as  to  afford  a  reasonable  prospect  that  he  will 
realize  the  avails  of  his  expenditure  in  a  reasonable  period.   The 
ar<^ument  for  the  defendants  would  be  somewhat  stronger  if  we 
could  say  that  the  amount  to  be  advanced  at  the  several  stages 
mentioned    was  understood  by  the   parties  to  be  the  price  or 
equivalent  tor  the  labor  and  materials  already  expended.     This 
by  no  means    appears,  but,    on  the  contrary,   there    is  strong 
reason  to  believe  that  in  this  case  a  considerable  portion  of  the 
price  was  to  be  at  all  times  kept  back  in  orderto  secure  the  speedy 
completion  of  the  contract.      When  Bridgcr  &  Company  failed 
only  three  thousand  dollars  of  the  five  thousand  had  been  paid, 
and  they  would  not  be  entitled  to  any  more  until  the  barge  was 
finished,  and  yet  it  cost  only  seven  hundred  dollars  to  complete 
it.     This   renders  it  improbable  that  the  parties  could  have  in- 
tended the  sale  and  purchase  of  so  much  as  was   done   at  the 
several  staijes  of  the  work  at  which  payments  were  to  be  made, 
if  indeed  such  a  contract  were  not  in  itself  so  much  out  of  the 
course  of  the  ordinary  conduct  of  parties  as  not  to  be  assumed 
without  unequivocal  language. 

The  decision  in  Clarke  v.  Sj-'.-nce  is  placed  very  much  upon 
the  idea  that  parties  may  have  contracted  in  reference  to  the 
doctrine  announced  in  Woods  v.  Russell.     That  argument  can 


L  PROPERTY. 

rk  any  change  of 
B  intention  to  be 

the  materials  o£ 
ered  so  as  to  be 
id  fis  the  safety  of 
s  and  strength  of 
on  to  be  taken  by 
o  ascertain  as  the 
and  durable ;   and 
>t  tend  to  show  a 
;rty  as  fast  as  any 
ved.     It  amounts 
is   completed  the 
act.     The    provi- 
ark  is  a  very  usual 
racted  for,  and  it 
f  thus  to  assist  the 
rk   is  going  on  in 
pect  that  he  will 
lable  period.   The 
hat  stronger  if  we 
the  several  stages 
to  be  the  price  or 
r  expended.     This 
/,  there    is  strong 
ible  portion  of  the 
0  secure  the  speedy 
fc  Company  failed 
nd  had  been  paid, 
mtil  the  barge  was 
:lollars  to  complete 
ties  could  have  in- 
i  was   done   at  the 
s  were  to  be  made, 
io  much  out  of  the 

not  to  be  assumed 

:.d  very  much  upon 
n  reference  to  the 
rhat  argument  can 


HULL    V.  HULL 


349 


have  no  force  here,  but,   on    the  contrary,  the  mference  to  be 
drawn  from  our  own   cases   and  particularly  from  Merr.tt  v 
Johnson,  would  be  that  the  title  remained  in  the  budder  under 
such  a  contract  until  the  completion  ot  ihe  v-sel. 

The  foregoing  considerations  have  led  me  to  the  concUis.on 
that  the  modern   English   rule  is  not  founded  upon  sufhoen 
reasons  and  that  it  ought  not  to  be  followed.     The  judgment  of 
the  supreme  court  should,  therefore,   be   reversed  and  a  new 
trial  ordered. 

»      ..■      ^«  XT  V   tS->    qc  Barb.  28;    Pitts.,  etc.,  R. 
Consult— Low  v.  Austin,  20  N.  Y.  18.,  25  uaro.       ,  '    .     , 

Co  V  Heck  ^oI.il.  308;  Williams  v.Jackma.i,  x60ray,Si4;  ^^^l°'\^' 

^VMi"  Fe'rfyCo.,' 7  Ind.  5.4;    Whitcomb  v.  Whitney,  .4  M-h.  489. 


§  67.    Things  in  potential  existence. 

HULL  V.  HULL. 

[4S  Conn.  250;  40  Am.  Rep.  165.] 

Supreme  Court  of  Errors  of  Connecticut,  1880. 

T  ,K,>us,  J.-The  controversy  in  this  case  has  reference  to  the 
ownership  of  six  colts,  the  progeny  of  two  brood  ""^y^^'  ^^J^^ 
the  plaindff,  some  ten  years  prior  to  this  suit,  purchased  m  Boston 
oiL  Rev.  William  H.  H.  Murray.  The  contract  of  sale  pro- 
vided that  the  plaintiff  might  take  the  mares  to  Murray  s  fa.m 
Tthis  state,  of  which  she  was  and  had  been  for  several  yeais 
he  superintendent,-  and  there  keep  them  as  breedmg  majes; 
and  aU  the  colts  thereafter  foaled  from  them,  ^bough  s.rec  by 
Sur;ay's  stallions,  were   to  be  the  exclusive  property  of  the 

^'Toftlempt  has  been  made  by  Murray's  creditor,  or  his^  h-us- 
tee  to  deprive  the  plaintiff  of  the  mares  so  purchased,  and  they 
are  now  I  her  undisturbed  possession;  but  the  colts,  whde  on 
Murray's  farm  on  the  first  of  August,  1879,  --^e  attacheu  by 
one  of  his  creditors,  who  subsequently  released  the  proper  y  o 
the  defendant  as  trustee  in  insolvency,  who  had  the  property  m 
his  possession  at  the  time  the  plaintiff  brought  her  wnt  of 
replevin. 


350       MODES  OF  OnTAINING  TITLE  TO  PERSONAL  PR>  PERTY. 

The  sole  ground  upon  which  the  defendant  claims  to  hold 
these  colts  is,  that  there  was  such  a  retention  of  possession  by 
Murray  after  the  sale  as  to  render  the  transaction  constructively 
fraudulent  as  against  creditors. 

The  court  below  overruled  this  claim,  and  in  :,o  doing  we 
think  committed  no  error. 

The  doctrine  as  to  retention  of  possession  after  a  sale  has  no 
application  to  the  facts  of  this  case.     A  vendor  can  not  retain 
after  a  sale  what  does  not  then  exist  nor  that  which  is  a  ready 
in  the  possession  of  the  vendee.     This  proposition  would  seem 
to  be  self-sustaining.     If,  however,   i^  needs  confirmation    the 
authorities  in  this  state  and  elsewhere  abundantly  supply  it. 
Lucas  V.   Birdsey,   41   Conn.    357 ;    Capron  v   Porcer,  43    d. 
,89 ;   Spring  v.  Chipman,  6  Verm.  662.     In  Bellows  v.  W  tils, 
yVerm.  599,  it  was  held  that   a   lessee   might  convey  to  his 
lessor  all  the  crops  which  might  be  grown  on  the  leased  land 
during  the  term,  and  no  delivery  of  the  crops  after  they  were 
harvested  was  necessary  even  as  against  attaching   creditors, 
nnd  that  tl  e  doctrine  as  to  retention  of  possession  after  the  sale 
did  not  apply  to  property  which  at  the  time  of  the  sale  was  not 
subject  to  attachment  and  had  no  real  existence  as  property  at 

^  The  ca^e  at  bar  is  within  the  principle  of  the  above  author- 
ities, for  it  is  very  clear  that  the  title  to  the  property  in  ques- 
tion  when  it  first  came  in'o  existence  was  in  the  pla.ntiti 

In  reaching  this  conclusion  It  IS  not  necessary  to  hold  that  the 

n^ares  became  the  ab.oUne  property  of  the  plaintiff  under  Mass- 
achusetts  law  without  a  more  substantial  and  visible  change  of 
possession,  or  that  under  our  law,  the  title  to  the  mares  being 
fn  the  plaintiff  clearly  as  between  the  parties,  the  rule  imported 
frou.  the  civil  law,  parties  scqiiitur  ventrcm,  applies. 

We  waive  the  consideration  of  these  questions.  It  will  suffice 
that  by  the  express  terms  of  the  contract,  the  plaintiff  was  to 
have  as  her  own  all  the  colts  that  might  be  born  from  these 
mares.     That  the  law  will  sanction   such   a  contract  is  very 

""  Tt  is  true,  as  remarked  in  Perkins  on  Conveyances  (tit.  Grant, 
sec  60,  that  "it  is  a  common  learning  in  the  law  that  a  man 
can  not  grant  or  charge  that  which  he  has  not ;"  yet  it  is  equally 
well  settled  that  a  future  possibility  arising  out  of,  or  depend- 


claims  to  hold 

possession  by 

1  constructively 

in  bo  doing  we 

2r  a  sale  has  no 
can  not  retain 
hich  is  already 
ion  would  seem 
mfirmation,  the 
intly  supply  it. 
.  Porter,  43  Id. 
allows  V.  Wells, 
it  convey  to  his 
the  leased  land 
after  they  were 
ching   creditors, 
on  after  the  sale 
the  sale  was  not 
;  as  property  at 

e  above  author- 
operty  in  ques- 
e  plaintiff, 
y  to  hold  that  the 
itiff  under  Mass- 
visible  change  of 

the  mares  being 
the  rule  imported 
ipplies. 

IS.  It  will  suffice 
!  plaintiff  was  to 
born   from  these 

contract  is  very 

nances  (tit.  Grant, 
le  law  that  a  man 
;"  yet  it  is  equally 
ut  of,   or  depend- 


HULL    V.   HULL. 


351 


cnt  upon,  some  present  right,  property,  or  interest,  may  be  the 
subicct  of  a  valid  present  sale. 

The  distinction  is  illustrated  in  Hobart,  133,  as  follows: 
uThe  grant  of  all  the  tithe  wool  of  a  certain  year  is  good  in  its 
creation,  though  it  may  happen  that  there  be  no  tithe  wool  in 
that  year;  but  the  grant  of  the  wool  which  shall  grow  upon 
such  sheep  as  the  grantor  may  afterward  purchase,  is  void. 

It  is  well  settled  that  a  valid  sale  may  be  made  of  the  wine  a 
vineyard    is   expected    to   produce,    the    grain   that  a  field    .s 
expected  to  grow,  the  milk  that  a  cow  may  yield,  or  the  future 
voungborn  of  an  animal,      i    Parsons  on  Contracts  [5  Ed.], 
pa-e  ^23,  note  Z-,  and  cases  there  cited;  Milliard  on  Sales,  sec. 
iS  •  Story  on  Sales,  sec.  1S6.     In  Fonville  v.  Casey,  i  Murphy 
(^  C  ),  ^So,  it  was  held  that   an  agreement  for  a  valuable 
consideration   to  deliver  to  the   plaintiff   the   first  female  colt 
which  a  certain  mare  owned  by  the  defendant  might  produce, 
vests  a  property  in  the  colt  in  the  plaintiff,  upon  the  principle 
that  there  may  be  a  valid  sale  where  the  title  is  not  actually  in 
the  grantor,  if  it  is  in  him   potentially,   as  being  a  thing  acces- 
sory  to  something  which  he  actually  has.     And  in  McCurty  v. 
Blevins,  5  Yerg.  195,  it  was  held  that  where  A.  agrees  with  B. 
that  the  foal  of  A.'s  mare  shall  belong  to  C,  a  good  title  vests 
in   the   latter   when   parturition   from  the  mother  takes  place, 
though  A.  immediately  after  the  colt  was  born  sold  and  deliv- 
ered it  to  D. 

Before  resting  the  discussion  as  to    the  plaintiff  s  title  we 
ought  perhaps  briefly  to  allude  to  a  claim  made  by  the  defend- 
ant   both  in  the  court  below  and  in  this  court,  to  the  effect  that 
if  the  plaintiff's  title  be  conceded  she  is  estopped  from  assert- 
ing her  claim.     This  doctrine  of  estoppel,   as   all   triers   must 
have  observed,  is  often  strangely  misapplied.     And  it  is  surely 
so  in  this  instance.     The  case  fails  to  show  any  act  or  omission 
on  the  part  of  the  plaintiff  inconsistent  with  the  claims  she  now 
makes,  or  that  the  creditors  of  Murray  or  the  defendant  as  rep- 
resenting them  were  ever  misled  to  their  injury  by  any    act  or 
le-ligence  o"    her    part.     On   the    contrary,    the   estoppel    is 
ass^erted  in  the  face  of  the  explicit  finding  that  "as  soon  as  the 
plaintiff  became  aware  of  the  attachment  of  her  horses  she  for- 
bade the  officer  taling  the  same,   and  demanded   their  imme- 
diate return  to  her." 


353       MOnKS  OK  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

The  only  fact  which  is  suggested  as  furnishing  the  basis  for 
the  alleged  estoppel  is  that  from  the  first  of   August,  1879,  to 
the  twelfth  of  January  next  following,  "no  attempt  was  made 
by  the  plaintiff  to  maintain  her  title  by  suit,   although  she  was 
living  during  the   time   at   Guilford,   where   said    colts  were. 
But  who  ever  heard  of  an  estoppel  in  an  action  at  avv  predicated 
solely  on  neglect  to  bring  a  suit  for  the  period  of  five  months? 
To  recognise  such  a  thing  for  any  period   short  of  the  statu  e 
of  limitations  would  practically  modify  the  statute  and  create 
a    new   limitation.     Furthermore,    in   what   respect   have   the 
defendant  and  those  he  represents  been  misled  to  their  injury 
by  this  fact?     The    plaintiff   never    induced    the  takmg  of  or 
withholding   of   her   property.      And    can    a   tort-feasor   or    a 
wrongful  possessor  of  another's  property  object  to  the  delay  m 
suinAim  for  his  wrong,  and  claim,  as  in  this  case,  an  estoppel 
on  the  -round  that  his  own  wrongful  possession  proved  a  very 
expensive  one  to  him,  amounting  even  to  more  than  the  value 
of  the  property.     He  might  have   stopped   the  expense  at  any 
time  by  simply  giving  to  the  plaintiff  what  belonged  to  her. 

The  single  question  of  evidence   which  the   record  presen 
we  do  not  deem   it  necessary  particularly  to  discuss.     It  will 
suflice  to  remark  that  if  the  defendant's  testimony  was  admissi- 
ble to  show  that  Murray,  after  the  sale  to  the  pla.nt.ff  (and,  so 
far  as  appears,  in  her  absence),  claimed  to  own  the  mares  and 
olts,  It  was  a  complete   -  id  satisfactory  reply  for  the  plaintiL 
in  rebuttal  to  show  that  Murray's  own  entries  (presun^ably  a 
part  of  the  res  gestae),  in  the  appropriate  books  kept  by  h.m 
showed  the  fact  to   be  otherwise,   and  in   accordance  with  the 

nlaintiff's  claims.  .  , 

At  any  rate  it  is  very   clear  that  no   injustice   was  done  by 

this  ruling  to  furnish  any  ground  for  a  new  tnal. 

There  was  no  error  ia  the  judgment  complained  of  and  a 

new  trial  is  not  advised. 
See  note  to  next  case. 


^im 


^  PROPERTY. 

ing  the  basis  for 
\ugust,  1879,  to 
tempt  was  made 
ilthough  she  was 
lid  colts  were." 
at  law  predicated 

of  five  months? 
rt  of  the  statute 
tatute  and  create 
respect  have  the 
ed  to  their  injury 
the  taking  of  or 

tort-feasor  or    a 
;ct  to  the  delay  in 

case,  an  estoppel 
ion  proved  a  very 
jre  than  the  value 
le  expense  at  any 
ilonged  to  her. 
e   record  presents 
3  discuss.     It  will 
nony  was  admissi- 
j  plaintiff  (and,  so 
)wn  the  mares  and 
jly  for  the  plaintiff 
ies  (presumably  a 
ooks  kept  by  him, 
:cordance  with  the 

5tice   was  done  by 

:rial. 

)mplained  of  and  a 


MODES  OF  OBTAINING  THLE  TO  PERSONAL  PROPERTY.       353 

LOW  V.  PEW. 

[108  Mass.  374;  II  Am.  Rep.  357-3 

Supreme  Judicial  Court  of  Massachusetts,  187 T. 

Action  of  replevin  by  Alfred  Low  &  Company  to  recover  a 
lot  of  flitched  halibut  from  the  assignee  in  bankruptcy  of  John 
Low  &  Company.  The  parties  stated  the  following  case:  In 
April,  1S69,  as  the  schooner  Florence  Reed,  owned  by  John 
Low  &  Company,  was  about  to  sail  on  a  fishing  voyage  the 
plaintiffs  and  said  John  Low  &  Company  entered  into  the 
following  agreement  on  which  the  plaintiffs  paid  $1,500: 

"We,  John  Low  &  Son,  hereby  sell,  assign,  and  set  over 
unto  Alfred  Low  &  Company  all  the  halibut  that  may  be  caught 
by  the  master  and  crew  of  the  schooner  Florence  Reed  on  the 
vovage  upon  which  she  is  about  to  proceed  from  the  port  ot 
Glou'^estcr  to  the  Grand  Hanks  at  the  rate  of  five  cents  and  a 
quarter  per  pound  for  Hitched  halibut,  to  t>e  delivered  to  said 
Alfred  Low  &  Company  as  soon  as  said  schooner  arrives  at 
said  port  of  Gloucester  at  their  wharf.  And  we,  the  said  John 
Low  &  Son,  hereby  acknowledge  the  receipt  of  $1,500  in  part 
payment  for  the  halibut  that  may  be  caught  by  the  master  and 
crew  of  said  schooner  on  said  voyage," 

In  August  following  John  Low  &  Company  were  declared 
bankrupts  and  the  defendants  in  this  action  were  appointed 
assignees  and  the  deed  of  assignment  executed  to  them. 

On  the  return  of  the  Florence  Reed  the  United  States  mar- 
<;hal  took  possession  of  her  and  the  cargo  under  a  warrant  iu 
the  proceedings  in  bankruptcy  and  transferred  his  possession  to 
the  defendants  as  such  assignees. 

The  catch  of  the  schoonei  consisted  of  forty  thousand  bushels 
of  halibut ;  this  the  plaintiffs  demanded,  offering  to  pay  the  price 
stipulated  in  the  agreement,  less  the  $1,500  paid.  The  defend- 
ants refused  the  demand.  The  plaintiffs  replevied  $1,500 
worth  of  the  halibut  and  offered  to  receive  the  rest  of  the  hali- 
but and  pay  for  it  at  the  stipulated  rate. 

If  on  these  facts  the  plaintiffs  were  entitled  to  recover  they 
were  to  have  judgment  for  the  nominal  damages,  but  if  other- 
wise the  defendants  were  to  have  judgment  for  a  return  with 
damages  equal  to  interest  at  the  annual  rate  of  six  per  cent,  on 
the  appraised  value  of  the  fish  replevied. 
23 


T 


354       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PHOI'KRTY. 

Morton,  J.— Bv  the  decree   adjudging  John  Low  8c  Son 
bankrupts,  all  their  property,   except   such   as  is  exempted  by 
the  bankrupt  law,  was  brought  within  the  custody  of  the  law, 
and  by  the  subsequent  assignment  passed  to  theii   assignees. 
Williams  V.  Merritt,  103  Mass.  184.     The  firm  could  not  by  a 
subsequent  sale  and  delivery  transfer  any  of   such   property  to 
the  plaintiffs.     The  schooner  which  contained   the  halibut  in 
suit  arrived  in  Gloucester  August  14,  1869,  which  was  after  the 
decree  of  bankruptcy.     If  there  had  been  then  a  sale  and  deliv- 
ery to  the  plaintiffs  of  the  property   replevied,   it  would  have 
been  invalid.     The  plaintiffs,  therefore,  show   no  title  to  the 
halibut  replevied,  unless  the  effect  of  the  contract  of  April   17, 
1S69    was  to  vest  in  them   the  property  in  the  halibut  before 
the  bankruptcy.     It  seems  to  us  clear,  as  claimed  by  both  par- 
ties, that  this  was  a  contract  of  sale,  and  not  a  mere  executory 
agreement  to  sell  at  some  future  day.     The  plaintiffs  can  not 
maintain  their  suit  upon  any  other  construction,  because,  if  it 
is  an  executory  agreement  to  sell,   the  property  in  the  halibut 
remained  in  the  bankrupts,  and,  there  being  no  delivery  before 
the  bankruptcy,  passed  to  the  assignees.     The  question  m  the 
case,  therefore,  is,  whether  a  sale   of  halibut  afterward  to  be 
caught  is  valid,  so  as  to  pass  to  the  purchaser  the  property  in 
them  when  caught. 

It  is  an  elementary  principle  of  the  law  of  sales,  that  a  man 
can  not  grant  personal  property  in  which  he  has  no  interest  or 
title  To  be  able  to  sell  property,  he  must  have  a  vested  right 
hi  it  at  the  time  of  the  sale.  Thus  it  has  been  held  that  a 
mortgage  of  goods  which  tlu.  mortgagor  does  not  own  at  the 
time  'the  mortgage  is  made,  though  he  afterward  acquires 
them,  is  void.  Jones  v.  Richardson,  10  Met.  481.  The  same 
principle  is  applicable  to  all  sales  of  personal  property.  Rice 
V.  Stone,  I  Allen,  566,   and  cases   cited;    Head  v.   Goodwin, 

37  Maine,  181. 

It  is  equally  well  settled  that  it  is  suflficient  if  the  seller  has  a 
potential  interest  in  the  thing  sr-ld.  But  a  mere  possibility  or 
expectancy  of  acquiring  property,  not  coupled  with  any  inter- 
est does  not  constitute  a  potential  interest  in  it,  within  the 
meaning  of  this  rule.  The  seller  must  have  a  present  interest 
in  the  property,  of  which  the  thing  sold  is  the  product,  growth 
or  increase.  Having  such  interest,  the  right  to  the  thing  sold 
when  it  shall  come  into  existence,  is  a  present  vested  right,  and 


diH 


lL  phopkrty. 

Dhn  Low  &  Son 
s  is  exempted  by 
stody  of  the  law, 
J  theii   assignees, 
rm  could  not  by  a 
such   property  to 
ed   the  halibut  in 
vhich  was  after  the 
n  a  sale  and  deliv- 
;d,    it  would  have 
w   no  title  to  the 
tract  of  April  17, 
the  halibut  before 
imed  by  both  par- 
a  mere  executory 
plaintiffs  can  not 
tion,  because,  if  it 
lerty  in  the  halibut 
no  delivery  before 
he  question  in  the 
3Ut  afterward  to  be 
er  the  property  in 

f  sales,  that  a  man 
has  no  interest  or 
have  a  vested  right 
s  been  held  that  a 
as  not  own  at  the 
afterward  acquires 
et.  481.  The  same 
lal  property.  Rice 
Head  v.  Goodwin, 

it  if  the  seller  has  a 
mere  possibility  or 
lied  with  any  inter- 
3t  in  it,  within  the 
e  a  present  interest 
he  product,  growth, 
ht  to  the  thing  sold, 
ent  vested  right,  and 


LOW   V.  PEW. 


355 


the  sale  of  it  is  valid.  Thus  a  man  may  sell  the  wool  to  grow 
upon  his  own  sheep,  but  not  upon  the  sheep  of  another;  or  the 
crops  to  grow  upon  his  land,  but  not  upon  land  in  which  he  has 
„o  interest.  2  Kent  Com.  [lo  Ed.]  46S,  (641)  note  a ;  Jones 
V  Richardson,  10  Met.  4S1;  Bellows  v.  Wells,  36  Verm. 
509;    Van  Hoozer  v.  Corey,  34  Barb.  9;    Grantham  v.  Haw- 

ley.  Hob.  132. 

The  same  principles  have  been  applied  by  this  court  to  the 
assignment  of  future  wages  or  earnings.     In  Mulhall  v.  Quinn, 

1  Gray,  105,  an  assignment  of  future  wages,  there  being  no 
contract  ofservice,  was  held  invalid.     In  Hartley  v.  Tapley, 

2  Gray,  565,  it  was  held  that,  if  a  person  is  under  a  contract  of 
service,  he  may  assign  his  future  earnings  growing  out  of  such 
contract.  The  distinction  between  the  cases  is,  that  in  the 
former  the  future  earnings  are  a  mere  possibility,  coupled  with 
no  interest,  while  in' the  latter  the  possibility  of  future  earnmgs 
is  coupled  with  an  interest,  and  the  right  to  them,  though  con- 
tingent and  liable  to  be  defeated,  is  a  vested  right. 

In  the  case  at  bar,  the  sellers,  at  the  time  of  the  sale,  had  no 
interest  in  the  thing  sold.  There  was  a  possibility  that  they 
might  catch  halibut;  but  it  was  a  mere  possibility  and  expec- 
tancy, coupled  with  no  interest.  We  are  of  opinion  that  they 
had  no  actual  or  potential  possession  of,  or  interest  in,  the  fish; 
and  that  the  sale  to  the  plaintiffs  was  void. 

The  plaintiffs  rely  upon  Gardner  v.  Hoeg,  18  Pick.  168,  and 
Tripp  V.  Brownell,  12  Cush.  376.  In  both  of  these  cases  it 
was  held  that  the  lay  or  share  in  the  profits,  which  a  seaman  in 
a  whaling  voyage  agreed  to  receive  in  lieu  of  wages,  was 
assignable.  The  assignment  in  each  case  was,  not  of  any  part 
of  the  oil  to  be  made,  but  of  the  debt  which  under  the  shipping 
articles  would  become  due  to  the  seaman  from  the  owners  at 
the  end  of  the  voyage.  The  court  treated  them  as  cases  of 
assignments  of  choses  in  action.  The  question  upon  which  the 
case  at  bar  turns  did  not  arise,  and  was  not  considered. 

Judgment  for  the  defendants. 
CoNsuLT-Williams  v.  Briggs,  11  R.  I.  176,  23  Am.  Rep.  518;  Parker 
V.Jacobs,  14  S.  C.  112,  37  Am.  Rep.  724;  Arques  v.  Wasson  51  Cal. 
620;  Gittings  V.  Nelson,  86  111.  591;  Hunter  v.  Boswortn,  43  W'^.  583; 
Sawyer  v.Gerrish,  70  Me.  254,  25  Am.  Rep.  3^3;  Watk.ns  v.  Wyatt,  9 
Baxt.  250,  40  Am.  Rep.  90;  Hutchinson  v.  Ford,  9  Bush.  S'S,  15  Am. 
Rep.711;  Van  Hoozer  v.Coroy,  34  Barb.  9;  Ruthrautf  v.  Hagenbuch, 
58  Pa.  St.  103;  Heald  v.  Builders'  Ins.  Co.,  in  Mass.  38;  McCaffrey  v. 
Woodin,  65  N.  Y.  459. 


T 


356      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PHOPEHTV. 

§  68.    The  price. 

McCONNELL  v.  HUGHES. 

[29  Wis.  .S37-] 
Stiprcvic  Court  of  Wisconsin,  1872. 

The  plaintiff  alleges  in  his  complaint  that  on  the  seventh  day  of 
February,  1870,  he  bargained  and  sold  to  the  defendan  s  c.gh 
h:ndred'and  Ly-five  and  fifty-three  sixtieths  buseh  o    wh  a 
at  the  agreed  price  of  ten  cents  per  bushel   less  than  tl  e  M  ^■ 
waukee  price  on  any  day  thereafter  which  he,  the  sa.d  plaint^ 
Thould  name;  and  that  within  a  few  days  after  the  sa.d  seventh 
d'yo  February  he  delivered  said  wheat  to  the  defendants,  at  then- 
n.ill  in  the  city  of  Berlin,  and  the  defendants  received  the  same 
in  pursuance  of  the  terms  of  such  bargain  and  sale ;   and  that  he 
Zward  named  the  twenty-fourth  day  of  March,  ibyo,  as  the 
day  fixing  the  price,  and  notified  the  defendants  thereof    and  on 
tl  Itdav  demanded  of  them  payment  of  the  amount  which,  ac- 
ceding to  the  terms  of  the  contract,  was  due  him  from  then. 

The  plaintiff  also  avers  that,  according  to  the  terms  o  the 
agreem  nt.  seventythree  cents  per  bushel  was  the  price  to  be 
p!kl  him  by  the  defendants.  He  further  avers  that  the  defend- 
ants oaid  him  $7^  on  account  of  the  wheat. 

T'edefendants,  in  their  answer,  state  that  they  were,  on  the 
seventh  day  of  February,  .870,  engaged  in  the   manufacture  of 
flom-  at  the  city  of  Berlin;  that  they  had,  in  the  mill,  facd.ties  foi 
st";;g  about  six   thousand  bushels  of  grain,  and  that  they  re- 
ceived the  plaintiff's  wheat  in  store  for  him,  in  pursuance  of  an 
agreement  that  they  should  purchase  the  same  whenever  there- 
a^er  the  plaintiff  should  elect  to  sell,  at  ten  cents   ess  than  the 
MUwaukL  price  on  the  day  of  sale,  and  that  while  tl.e  whea 
was  thus  in  store  and  before  the  plaintiff  elected  to  sell,  to  wit : 
r„  the  eleventh  day  of  March,  1870,  their  mill,  together  with  the 
plaintiff's  wheat,  was  destroyed  by  fire  without  their  f aid  . 

A  iury  was  waived  and  the  action  was  tried  by  the  court.  The 
court  foind  in  substance  that  the  allegations  of  the  complaint 
;:;^  tme  and  gave  judgment  for  the  plaintiffs;  from  which  the 
defendants  appealed. 


^>Jm 


L  PKOI'EHTY. 


MCCONNELL    V.   llUCillKS. 


357 


1872. 

,  the  seventh  day  of 
;  defendants  eight 

bushels  of  wheat 
ess  than  the  Mil- 
,  the  said  plaintiff, 
er  the  said  seventh 
defendants,  at  their 
received  the  same, 
d  sale ;  and  that  he 
darch,  1870,  as  the 
mts  thereof,  and  on 

amount  which,  ac- 
e  him  from  them, 
to  the  terms  of  the 
was  the  price  to  be 
ers  that  the  defend- 

it  they  were,  on  the 
the   manufacture  of 
the  mill,  facilities  for 
in,  and  that  they  re- 
,  in  pursuance  of  an 
ime  whenever  there- 
n  cents  less  than  the 
that  while  the  wheat 
ected  to  sell,  to  wit: 
lill,  together  with  the 
hout  their  fault, 
ed  by  the  court.  The 
ions  of  the  complaint 
tiffs ;  from  which  the 


Lyok,  J.— The  bill  of  exceptions  does  not  purport  to  contain 

all  of  the  evidence. 

Wc  can  not,  therefore,  review  the  evidence,  but  must  pre- 
sume that  it  sustains  the  findinRS  of  fact  by  the  circuit  court. 
Tliat  court  having  found  that  the  material  allegations  of  the 
complaint  were  proved,  it  follows  that  if  the  complaint  states  a 
valid  cause  of  action,  the  plaintiff  was  entitled  to  judgment. 

We  think  that  the  complaint  does  state  a  valid  cause  of 
iction.  It  avers  that  an  executory  contract  for  the  sale  and 
'purchase  of  wheat  was  made  by  the  parties,  and  that,  in  pur- 
sumcc  thereof,  the  plaintiff  delivered  to  the  defendants,  and  the 
defendants  accepted  and  received  the  wheat.  It  must  be  true 
that  by  such  delivery  and  acceptance  the  title  to  the  wheat  be- 
came  vested  in  the  defendants,  and  the  right  to  have  the  price 
therefor,  when  the  same  should  be  determined  as  provided  in 
the  contract,  in  like  manner  became  vested  in  the  plaintiff. 

But  it  is  urged  on  behalf  of  the  defendants  that  the  transac- 
tion was  invalid  as  a  sale,  because  the  contract  did  not  limit  the 
plaintiff  to  the  selection  of  any  particular  day,  or  of  a  day  withm 
a  specified  time,  on  which  the  market  price  of  wheat  in  Mil- 
waukee should  control  the  price  of  the  wheat  in  question,  but 
left  him  the  option  to  select  any  day  in  the  future  for  the  pur- 
pose of  fixing  the  price. 

The  contract  furnishes  a  criterion  for  ascertaining  the  price  of 
wheat,  leaving  nothing  in  relation  thereto  for  further  negotia- 
tion between  the  parties.  This  is  all  that  the  law  requires. 
Storv  on  Sales,  sec.  220.  No  case  has  been  cited,  and  we  are 
unable  to  find  one,  which  holds  that  it  is  essential  to  the  valid- 
ity of  a  sale  in  such  cases  that  the  criterion  agreed  upon  should, 
by  the  terms  of  the  contract  of  sale,  be  applied,  and  the  price 
thereby  determined,  on  any  specified  day  or  within  a  specified 
time.  Judge  Story,  in  the  section  of  his  treatise  above  cited, 
evidently  does  not  intend  to  lay  down  any  such  rule.  It  may  be 
that,  if  the  plaintiff  had  delayed  unreasonably  to  make  such 
selection  after  being  requested  to  make  the  same,  he  might  be 
compelled  to  do  so.     But  we  do  not  decide  this  point. 

It  is  further  argued  that,  after  a  valid  sale  and  before  pay- 
ment of  the  price,  there  must  be  a  debt  owing  by  the  vendee  to 
the  vendor,  while  in  this  case,  until  the  price  of  the  wheat  was 
ascertained,  there  was  no  indebtedness.     The  latter  part  of  this 


358      MODES  OF  OHTAINING  TITLE  TO  PEHSONAL  PUOPEIITY. 

proposition  is  erroneous.  As  soon  as  the  wheat  was  delivered, 
the  defendants  owed  the  plaintiff  therefor.  There  was  there- 
fore a  debt,  but  the  amount  thereof  was  not  ascertained.  It 
remained  unliquidated  until  the  price  of  the  wheat  was  deter- 
mined. 

The  objections  that  the  assessor  could  not  list  the  claim  for 
the  price  of  the  wheat  for  taxation,  and  that  the  same  could  not 
be  reached  by  garnishee  p«-ocess  at  the  suit  of  a  creditor  of  the 
plaintiff,  while  such  price  remained  undetermined,  present  no 
practical  difficulties.  The  assessor  would  fix  the  value  of  the 
demand  according  to  his  best  judgment  as  in  other  cases  of  the 
valuation  of  property  and  credits ;  and  the  creditor  in  the  gar- 
nishee proceeding  would  probably  be  subrogated  to  the  rights 
of  the  plaintiff  in  respect  to  determining  the  contract  price  for 

the  wheat. 

The  judgment  of  the  circuit  court  is  affirmed. 

Consult— Herrick  v.  Carter,  56  Barb.  41 ;  Fuller  v.  Owen,  36  Ala.  73; 
Harden  v.  Dwyer,  47  Minn.  246;  Gartner  v.  Hand,  86  Gn.  558;  Hale  v. 
Haynes,  54  N.  Y.  389;  Newlan  v.  Dunham,  60  111.  237;  Wittkowsky  v. 
Warren,  71  N.  C.  451;  Rovengo  v.  Defferarl,  40  Cal.  459;  Callaghan  v. 
Myers,  89  111.  570;  Greene  v.  Lewis,  85  Ala.  225,  j  Am.  St.  Rep.  42; 
Blow  V.  Spear,  43  Mo.  497,  97  Am.  Dec.  412;  Humaston  v.  Tel.  Co.,  zo 
Wall.  20. 


KOUNTZ  V.  KIRKPATRICK. 

[72  Pa.  St.  376.] 

Supreme  Court  of  Pennsylvania^  1873. 

Assumpsit  by  Joseph  Kirkpatrick  and  James  Lyons,  trading 
as  Kirkpatrick  &  Lyons,  to  the  use  of  Frederick  Fisher  and 
others,  trading  as  Fisher  Bros.,  against  William  J.  Kountz,  for 
failure  to  deliver  a  certain  quantity  of  crude  petroleum,  when 
called  upon  to  do  so  December  31,  1S69,  incompliance  with 
his  contract  previously  made.  Judgment  for  plaintiffs,  and  de- 
fendant brings  error. 

Agnew,  J.  —The  second,  third,  fifth,  sixth,  seventh,  eighth, 
eleventh,  twelfth,  thirteenth,  fourteenth,  fifteenth,  and  sixteenth 
errors,  are  not  well  assigned,  for  all  the  answers  ot  the  court  to 


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Photographic 

Sciences 
Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  H580 

(716)  872-4503 


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Microfiche 

Series. 


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Collection  de 
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Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


KOUNTZ    V.   KlRKi-.^  TRICK. 


359 


the  points  were  omitted.     When  a  co-<rt  sutiply  refuses  a  point, 
the  error  is  well  assigned  by  reciting  th .  point,  and  stating  that 
it  was  refused.     But  when  the  judge  answers  specially,  in  order 
to  introduce  a  qualification  he  deems  necessary  to  make  his  in- 
struction correct,    the  answer  must  be    recited  as  well  as  the 
point.     We  shall  not  decline  considering,  however,  all  the  im- 
portant questions ;  and  in  order  to  discuss  them,  we  may  state 
succinctly  the  nature  of  the  case.    On  the  seventh  of  June,  1S69, 
Kountz  sold  to  Kirkpatrick  cS:  Lyons  two  thousand  barrels  of  crude 
petroleum,  to  be  delivered  at  his  option,  at  any  time  from  the  date 
until  the  thirty-first  o.  December,  1869,  for  cash  on  delivery,  at 
thirteen  and  a  half  cents  a  gallon.  On  the  twenty- fourth  of  June, 
,869,  Kirkpatrick  &  Lyons  assigned  this  contract  to   Fisher  & 
Brothers.     Kountz  failed  to  deliver  the  oil.    He  defends  on  the 
ground  that  Kirkpatrick  &  Lyons,  and  others  holding  like  con- 
tracts for  delivery  of  oil,  entered  into  a  combination  to  raise  the 
price,  by  buying  up  large   quantities   of  oil,  and  holding  it  till 
the  expiration  of  the  year   1869,   and  thus  to  compel  the  sellers 
of  oil  on  option   contracts,  to  pay  a  heavy  difference  for  non- 
delivery.     Fisher  &   Brothers,   the  assignees  of  Kountz's  con- 
tract  were  not  in  the  combination,  and  the  principal  questions 
■^re  whether  they  are  affected  by  the  acts  of  Kirkpatrick  &  Ly- 
ons, subsequent  to  the  assignment;  whether  notice  of  the  assign- 
ment to  Kountz  was  necessary  to  protect  them,  and  what  is  the 
true  measure  of  damages.     The   court  below  held  that  Fisher 
&  Brothers,   as  assignees  of  the  contract,  were  not  affected  by 
the  acts  of  Kirkpatrick   &  Lyons,  as  members  of  the  combina- 
tion in  the  following  October  and  subsequently,  and  that  notice 
in  this  case  was  not  essential  to  the  protection  of  Kountz. 

The  common  law  rule  as  to  the  assignability  of  choses  m 
action  no  longer  prevails,  but  in  equity  the  assignee  is  looked 
upon  as  the  true  owner  of  the  chose.  He  may  set  off  the  de- 
mand  as  his  own.  Morgan  v.  Bank  of  North  America,  S  o.  & 
R  73-  Ramsey's  Appeal,  2  Watts,  338.  The  assignee  takes 
the  chose  subject  to  the  existing  equities  between  the  original 
pirties  before  assignment,  and  also  to  payment  and  other  de- 
fcnses  to  the  instrument  itself,  after  the  assignment  and  before 
notice  of  it;  but  he  can  not  be  affected  by  collateral  transac- 
tions, secret  trusts,  or  acts  unconnected  with  the  subject  of  the 
contract.     Davis  v.   Barr,  9  S.  &  R.  137;   K'^ckley  v.  Eckcrt, 


Kil 


360       MODES  OF   OUTAINIXG  TITI-K  TO  rEKSONAI.  PROrEUTY. 

7,  Barr,  292;  Mott  v.  Clavk.  9  U.  399;  Taylor  v.  Gitt.  10  Id. 
42S;  Northampton  Bank  v.  Balliet,  S  \V.  &  S.  31S;  Corser  v. 
Craig,  I  Wash.  C.  C.  R.  4^4;  i  I'aisons  on  Cont.  193,  196; 
3  Story  on  Cont.,  sec.  396,  n. 

The  act  of  Kirkpatrick  &  Lyons,  complained  of  as  members 
of  an  unhuvfnl  combination  to  raise  the  price  of  oil,  was  long 
snbsequent  to  their  assignment  of  Konnt/'s  contract,  and  was  a 
mere  tort.     The  contract  was  affected  only  by  its  results   as  an 
independent  act.     It  does  not  seem  just,  therefore,  to  visit  this 
effect  upon  Fisher  &  Brothers,  the  antecedent  assignees.      The 
act  is  wholly  collateral  to  the  ownership  of  the  chose  itself,  and 
there  is  nothing  to  link  it  to  the  chose,  so  as  to  bind  the  assign- 
ors and  assignees  together.     After  the  assignment,  there  being 
no  guaranty,  the  assignors  had  no  interest  in  the  performance 
of  this  particular  contract,  and  no  motive,  therefore,  arismg  out 
of  it  to  raise  the  price  on  Kountz.     The  acts  of  Kirkpatrick  & 
Lyons  seem,  therefore,  to  have  no  greater  or  other  bearing  on 
this  contract  than  the  acts  of  any  other  memljers  of  the  combina- 
tion, who  were  strangers  to  the  contract. 

In  regard  to  notice  of  the  assignment  to  Kountz,  it  is  argued, 
that  having  had  no  notice  of  it,  if  he  knew  of  the  conspnacy  to 
raise  the  price  of  oil,   and   thus  to  affect  his  contract,  and  that 
Kirkpatrick  ik  Lvons  were  parties  to  it,  he  might  have  relied  on 
that  fact  as  a  defense,  and  refused  to  deliver  the  oil,  and  claimed 
on  the  trial  a  verdict  for  merely  nominal  damages  for  his  breach 
of  his  contract.     Possibly  in  such  a  special  case,  want  of  notice 
might  have  constituted  an  equity,  but  the  answer  to  this  case  is, 
tha't  no  such  point  was  made  in  the  court  below,  and  there  does 
not  seem  to  be  any  evidence  that  Kountz  knew  of  the  conspir- 
acy, and  Kirkpatrick   &  Lyons'    privity,   and  relying  on  these 
fact's,   desisted   from   purchasing  oil  to  fulfil  his  contract  with 
theni.     As  the  case  stood  before  the  court  below,  we  discovei 
no  error  in  the  answers  of  the  learned  judge  on  this  part  of  it. 

The  next  question  is  upon  the  proper  measure  of  damages 
In  the  sale  of  chattels,  the  general  rule  is,  that  the  measure  is 
the  difference  between  the  contract  price  and  the  market  valm 
of  the  article  at  the  time  and  place  of  delivery  under  the  con- 
tract. It  is  unnecessary  to  cite  authority  for  this  well  establishet 
rule,  but  as  this  case  raises  a  novel  and  extraordinary  questioi 
between  the  true  market  value  of   the  article,  and  a  stimulate^ 


[ISOXAI.  PROr-EUTY. 

Taylor  v.  Gift,  lo  Id. 
\  &  S.  31S;  C'orser  v. 
ins  on  Cunt.  193,    196; 

iplaincd  of  as  members 
•  price  of  oil,  was  long 
tz's  contract,  and  was  a 
)nly  by  its  results  as  an 
,  therefore,  to  visit  tliis 
cedent  assignees.      The 

of  the  chose  itself,  and 
io  as  to  bind  the  assign- 
assignment,  there  being 
;rest  in  the  performance 
e,  therefore,  arismg  out 
e  acts  of  Kirkpatrick  & 
ater  or  other  bearing  on 
nemljersof  the  combina- 
t. 

:  to  Kountz,  it  is  argued, 
new  of  the  conspn-acy  to 
;ct  his  contract,  and  that 
,  he  might  have  relied  on 
jliver  the  oil,  and  claimed 
il  damages  for  his  breach 
jcial  case,  want  of  notice 
:he  answer  to  this  case  is, 
irt  below,  and  there  does 
jntz  knew  of  the  conspir- 
ity,  and  relying  on  these 
to  fulfil  his  contract  with 

court  below,  we  discover 
judge  on  this  part  of  it. 
)er  measure  of  damages, 
lie  is,  that  the  measure  is 
rice  and  the  market  value 
)f  delivery  under  the  con- 
ty  for  this  well  established 
md  extraordinary  question 
;  article,  and  a  stimulated 


KOUNT/.    V.   KlUKrATlUCK. 


361 


market  price,  created  by  artificial  and  fraudulent  pract.ccs,  ,t  .s 
necessary  to  fix  the  true   meaning  of  the  rule  itself,  before  we 
can  approach  the  real  question.     Ordinarily,  when  an  art.ce  of 
sale  is  in  the  market,  and  has  a  market  value,  there  .s  no  d.fter- 
ence  between  its  value  and  the  market  price,  and  the    aw  adopts 
the  latter  as  the  proper  evidence   of  the   value.     Tim   ,s  not, 
however,  because  value  and  price  are  really  convert.ble  terms, 
but  only  because  they  are  ordinarily  so  in  a  fan-  market.      1  he 
p,.imarv  n.eaning  of  -'value"  is  worth,  and  this  worth  :s  made 
up  of  the  useful  or  estimable  qualities  of  the  thmg.     See  Web- 
ster's   and   Worcester's    Dictionaries.     "l>rice,"    on  the  other 
hand,  is  the  sum  in  money  or  other  equivalent  set  upon  an  art,- 
cle  bl  a  seller,  which  he  demands  for  it.     Id.    Value  and  pnce 
are,  therefore,  not  synonyms,  or  the  necessary   equivalents  of 
each  other,  though  commonly,   market  value  and  market  pncc 
are  legal  e<iuivalents.     When   we   examine  the  authont.es,  we 
find  aFso  that  the  most  accurate  writers  use  the  phrase  market 
value,  not  market  price.     Mr.  Sedgwick,  in  his  ^^--'^^^tT^^ 
on  the  Measure  of  Damages  [4th  ed.  p.  260],  says:       Wle.c 
contracts  for  the  value   of  chattels  arc  broken  by  the  vendors 
failing  to  deliver  property   according  to   the  ™°    ^^^J!;"- 
c^ain,  it  seems  to  be  well  settled,  as  a  general  rule,  both  m  Eng- 
Tand  and  the  United  States,  that  the  measure  of  damages  is  the 
difference  between  the  contract  price  and  the  market  value  ot 
the  article  at  the  time  it  should  be  delivered  upon  the  ground; 
that  this  is  the  plaintiff's  real  loss,  and  that  with   this   sum    he 
can  go  into  the  market  and  supply  himself  with  the  same  article 
from  another  vendor."     Judge  Rogers  uses  tl,e  same  term  m 
Smethurst  v.  Woolston,  5  W.  &  S.  109.     "The  value  of  the 
flcfe "u  or  about  the  time  it  is  to  be  delivered    is  the  measure 
of  damages  in  a  suit  by  the  vendee   against  the   vendor  foi   a 
breach  o'  the  contract."     So  said  C.  J.  Tilghman,  in  Girard  v. 
Ta-art,  5  S.  &  R.  32.   .Ju'l^^  Sergeant,  also,  in  O  Conner  v. 
Forster,:o  Watts,  422,   and  in  Mott  v.    Danforth,  6  Id.  30S. 
But  as  even  accurate  writers  do  not  always  use  words  m  a  pre- 
cise  sense,  it  would  be  unsatisfactory  to  rely  on  the  common  use 
of  a  word  only,  in  making  a  nice  distinction  between  terms     It 
s  therefore  p,' per  to  inquire  into  the  true  legal  1  ca  o    dam- 
ages  in  order  to  determine   the   proper  definition  of   the  turn 
value.     Except  in  those  cases  where  oppression,  fraud,  malice, 


3^^ 


MODES  OF  Om-AIXING  TITLE  TO  TEKSONAL  PUOl-EUTV. 


or  negligence  enter   into   the  question,    "the    declared   object 
(savs  Mr.  Sedgwick,  in  his  work  on  Damages)  is  to  give  com- 
pensation  to   the   party  injured   for  the  actual  loss  sustained." 
4th  ed.,  pp.  2S,  29;  also,  pp.  36.  37-   Among  the  many  author- 
ities he  gives,  he   quotes   the   language  of  C  J.   Shippen,    ni 
Bussy  V.  Donaldson,  4  Dallas,  206.     "As  to  the  assessment  of 
damages  (said  he),  it  is  a  rational  and  legal  principle,  that  the 
compensation  should  be  equivalent  to  the  injury."   "The  rule," 
said  C.  J.  Gibson,  "is  to  give  actual  compensation,  by  gradu- 
ating the  amount  of  the   damages   exactly  to  the  extent  of  the 
loss."     "The  measure  is  the  actual,  not  the  speculative  loss.' 
Forsyth  v.  Palmer,  3  Harris,  97.     Thus,    compensation  being 
the  true  purpose  of  the  law,  it  is  obvious   that  the   mean^  em- 
ployed, in  other  words,  the  evidence  to  ascertain  compensation, 
must  be  such  as  truly  reaches  this  end. 

It  is  equally  obvious,  when  we  consider  its  true  nature,  that 
as  evidence,  the  market  price  of  an  article  is  only   a  means  ot 
aniving  at  compen^     ion ;  it  is  not  itself  the  value  of  the  article, 
but  is  the  evidence  of  value.     The  law    adopts  it  as  a  natural 
inference  of  fact,  but  not  as  a  conclusive  legal  presumption.     It 
stands  as  a  criterion   of   value,   because  it  is  a  common  test  of 
the  ability  to  purchase  the  thing.     But  to  assert  that  the  price 
asked   in  the   market  for  an  article  is  the  true  and  only  test  of 
value,  is  to  abandon  the  proper  object  of  damages,  vi^.,  com- 
pensation,  in   all  those  cases  where  the  market  evidently  does 
not  afford  the  true  measure  of  value.     This  thought  is  well  ex- 
pressed by  Lewis,  C.  J.,  in  Bank  of  Montgomery  v.  Reese,  2 
Casey,  146.     "The  paramount  rule   in  assessing  damages  (he 
says), 'is  that  every  person  unjustly  deprived  of  his  rights,  should 
at  least  be  fully  compensated  for  the  injury  he  sustained.  Where 
articles  have  a  determinate  value  and  an  unlimited  production, 
ihe  general  rule  is  to  give  their  value  at  the  time  the  owner  was 
deprived  of  them,   with   interest  to  the  time  of  verdict.     This 
rule  has  been  adopted  because  of  its  convenience,  and  because 
it  in  general  answers  the  object  of  the  law,  which  is  to  compen- 
sate  for  the  injury.     In  relation  to   such    articles,    the    supply 
usually  keeps  pace  with  the  demand,  and  the  fluctuations  in  the 
value  are  so  inconsiderable  as  to  justify  the  courts  in  disregard- 
ing them  for  the  sake  of  convenience  and  uniformity.     In  these 
cases,  the  reason  why  the  value  at  the  time  of  conversion,  wit^ 


tSONAL  PUOri' IITV. 

"the    declared  object 
lages)  is  to  give  com- 
actiial  loss  sustained." 
nong  the  many  author- 
of   C.   J.   Shippen,    in 
U  to  the  assessment  of 
;gal  principle,  that  the 
■  injury."   "The  rule," 
impensation,  by  gradu- 
ly  to  the  extent  of  the 
t  the  speculative  loss." 
5,    compensation  being 
IS   that  the   mean*-  em- 
isceriain  compensation, 

der  its  true  nature,  that 
cle  is  only   a  means  of 

the  value  of  the  article, 

adopts  it  as  a  natural 

2  legal  presumption.     It 

;  it  is  a  common  test  of 

to  assert  that  the  price 
the  true  and  only  test  of 
of  damages,  viz.,  com- 
e  market  evidently  does 
This  thought  is  well  ex- 
^ontgomery  v.  Reese,  3 
n  assessing  damages  (he 
ived  of  his  rights,  should 
ury  he  sustained.  Where 
an  unlimited  production, 
it  the  time  the  owner  was 
le  time  of  verdict.     This 
:onvenience,  and  because 
law,  which  is  to  compen- 
ich    articles,    the    supply 
md  the  fluctuations  in  the 
y  the  courts  in  disregard- 
md  uniformity.     In  these 

time  of  conversion,  with 


KOUNTZ    V.  KIRKPATRICK. 


3^' 3 


interest,  generally  reaches  the  justice  of  the  case,  is  that  when 
the  owner  is  deprived  of  the  articles,  he  may  purchase  others  at 
that  price.     But   it  is  manifest  that  this  would  not  remunerate 
him  uhere  the  article  could  not  be  obtained  elsewhere,  or  where 
from  rest -ictions  on  its  production,  or  other  causes,  its  price  is 
necessarily  subject  to   considerable   fluctuation."     Tins  shows 
that  the  market  price  is  not  an  invariable  standard,  and  that  the 
converse  of  the  case  then  before  Judge  Lewis  is  equally  true- 
that  is  to  say— when  the  market  price  is  unnaturally  uiflated  by 
unlawful  and  fraudulent  practices,  it  can  not  be  the  true  means 
of  ascertaining  what  is  just  compensation.    It  is  as  unjust  to  the 
seller  to  give  the  purchaser  more  than  just  compensation,  as  it 
is  to  the  purchaser  to  give  him  less.     Right  upon  this  point,  we 
have  the  language  of  this  court  in  the  case  of  a  refusal  by  a  pur- 
chaser to  accept.     Andrews  v.   Hoover,   S    Watts  240.     It    .s 
said  •   "The  jury  is  bound  by  a  measure  of  damages  where  there 
il  one,  but  not  always  by   a  particular  means  for  its  ascertain- 
ment     Now  the  measure  in  a  case  like  the  present  is  the  dit- 
ference  between  the  price  contracted  to  be  paid  and  the  value  of 
the  thing  when  it  ought  to  have  been  accepted ;   and  though  a 
resale  is  a  convenient  and  often  satisfactory  means,  it  does  not 
follow  that  it  is,  nor  was  it  said  in  Girard  v.  Taggart,  to  be  the 
only   .ne.    On  the  contrary,  the  propriety  of  the  direction  there, 
that  the  jury  were  not  bound  by   it,  if  they  could  find  another 
moie  in  accordance  with  the  justice  of  the  case,  seems  to  have 
beet^   admitted ;    the  very  thing  complained  of  here.        Judge 
Stroi>g  took  the   same  view  in  Trout  v.  Kennedy,  n  \\nght, 
,0,       That  was  the  case  of  a  trespasser,  and  the  jury  had  been 
told  that  the  plaintiff  was  entitled  to  the  just  and  full  value  of 
the  property,  and  if  at  the  time  of  the  trespass  the  market  was 
depressed,  too  much  importance  was  not  to  be  given  to  that  fact. 
"If"  (says  Judge  Strong)  "at  any  particular  time,  there  be  no 
market  demand  for  an  article,  it  is  not,  of  course,  on  that  account 
of  no  value.     What  a  thing  will  bring  in  the  market  at  a  given 
time,  is  perhaps  the  measure  of  its  value  then;  but  it  is  not  the 
only    one  "     These  cases  plainly  teach  that  value  and  market 
price  are  not  always  convertible  terms;  and  certainly  there  can 
be  no  difference,  in  justice  or  law,  in  an  unnatural  depression 
and  an  unnatural  exaltation  in  the  market  price-neither  is  the 
true  and  only  measure  of  value. 


364       >.ODES  or  O.vrA.N.Nc/  TITUC   to  PKUSOVAL  1.KO.-KHTV. 

These   ,cner.l   principles   .n   the   doctrine  of   davna^s  ami 
.uU>or.ties,  prove  that  an  inHated  specuh.t.ve  market  p  kc    not 
I  "suit  of  natural  causc-s,  hut  of  artificial  means  to  stunulate 
ces  bv  unlawful  combinations  for  the  purpo..s  of  gan.,  can 
,,,  be  ;ie<,ntinKUe  means  of  estimating  jus^  compcnsat.on       It 
:t.  to  th:  purchaser  more  than  he   ougi.t  to  have,  and  com- 
Lis  the  seller  to  pay  more    than   he   ought  to   gue,    and    .      s 
efore  not  a  just  criterion.     There  is  a  case  n.  our  own  s      e 
b  •  dn.^  strongly  on  this  point:      Blydenburgh  et  a  .  v.  Welsh 
^^     l\'.  Rco    ^1^1       Judge  Baldwin  had  charged  the  jury  m 
^';:^^  ''-H     on   are   satisfied   from   the   evidence,    that 
.L  on  that  day  a  fixed  price  in  the  market,  you  must  be 
!:::rned  by  it;    if  the  evidence  is  doubtful  as  to  th^  pnce^    nd 
;°tnesses  v"ary  in  their  statements,  you  must  adop    that  wh.ch 
"      h    k  best  accords  with  the  proof  in  the  case  "     In  grant- 
^  ewtrinl    Tnd-e  llopkinson  said:      "It  is  the  pnce-the 

:?r  ;^i^fth:articLthat   is  to   furnish  the  measure  of 
bit'      Now  what  is  the  price  of  a  thing,  part.cularly  the 
t^eturice'     We  consider   it   to  be    the   value,    the   rate   at 
::i  d   th     1  ing  is  sold.     To   make   a   market  there   must  be 
:^^and   s^ing,  purchase  and  sale.     "Jhe   owner  of   ar 
^^le  holds  it  at  a  price  which   nobody   wdl   g.ve  for  .  ,  c^^ 
th  t  be  said  to  be  its  market  value?     Men  sometn.es  put  fan. 
U  ll  Fices  upon  their  property.      For  reasons  persona    anc 
ne    U  ar   they  mav  rate  it  much  above  wh.t  any  one  would  g.  . 
o"  that  th;  value?     Further,  the  holders  of  an   article 

flou      for  instance,  under  a  false  rumor,   which,   ,f  true,  wouh 
'u"ment  its  value,  may  suspend  their  sales,  or  put  a  pr.ce  npo^ 
i     „"     ccording  to  its  value  in  the  actual  state  of  the  market 
;,t"  c^dinc.  to  what  hr  their  opinion  will  be  its  market  pr.c 
:  l;  U      provided  the  rumor  shall  prove  to  be  true.       n  such 
c  Je     it  i     clear  that  the  asking  price  is  not  the  wonh  of  th 
hing  on  the  given  day,  but  what  it  is  supposed  it  wdl  be  wor 
"future  day,   if  the   contingency   shall   happen   winch    >s  I 
:  ;  is  addit.onal  value.     To  take  such  a  price  as  the  ru 

o  cb  m.ges  is  to  make  the  defendant  pay  what  n.  truth  nev, 
:  ;  r'a  ue  of  the  article,  and  to  give  to  the  plaint.ff  a  pro- 
;;;;  breach  of  the  contract,  which  he  never  would  have  ma. 

'^^j:;;:^::jended  sales  upon  a  rumor  tending  to  enhan 
the  price,  put  by  Judge   Ilopkinson,   bears  no   compar.son 


[ISONAL  I'llOrKKTV. 

rtrinc  of  chima^cs  and 
lative  market  price,  not 
cial  means  to  stimulate 
:  purpot^s  of  sain,  can 

just  compensation.  It 
ight  to  have,  and  com- 
i<rlit  to   give,    and   it   is 

a  case  in  our  own  state 
nbursh  ct  al.  v.  Welsh, 
had  charged  the  jury  in 
lom  the  evidence,  that 
he  marlict,  you  must  be 
btful  as  to  the  price,  and 

must  adopt  that  which 
in  the  case."  In  grant- 
1:  "It  is  the  price — the 
furnish  the  measure  of 
a  thing,  particularly  the 
;  the  value,  the  rate  at 
^  market  there  must  be 
le.  If  the  owner  of  an 
ody  will  give  for  it,  can 
Men  sometimes  put  fan- 
?or  reasons  personal  and 

whrt  any  one  would  give 
he  I'oUlers  of  an  article, 
or,   which,   if  true,  would 

sales,  or  put  a  price  upon 
:tual  state  of  the  market, 
1  will  be  its  market  pricf 
ove  to  be  true.  In  such  a 
Ice  is  not  the  worth  of  the 
supposed  it  will  be  worth 
shall  happen  which  is  to 
;e  such  a  price  as  the  rule 
t  pay  what  in  truth  never 
five  to  the  plaintiff  a  profit 
e  never  would  have  made 

a  rumor  tending  to  enhance 
I,   bears   no   comparison  to 


i 


KOUNTZ    V.    KIKKl'AritlcK. 


36  = 


the   case   alleged   here,   where   a   combination   is  mtent.onally 
formed  to  buy  up  oil,  hold  it  till  the  year  is  out,  and  thus  force 
the  market  price  up  purposely  to  affect  existing  contracts,  and 
compel  the  sellers  to  pay  heavy  damages  for  nonfulfdlmon    o 
Ihcir  bargains.      In   the   same   case   Judge    llopk.nson    fu.the. 
said-     "We  did  not  intend  that  they  (the  jury)  should  go  out 
of  the  limits  of  the  market  price,  nor  to  take  a.  that  price  what- 
ever  the  holders  of  the  coffee  might  choose  to  ask  tor   .t ;    sub- 
stituting a  fictitious,  unreal   value,   which  nobody  would  g.ye 
for  that  at  which  the  article   might  be   bought  or  sold.  In 

determining,"  says  an  eminent  writer  on   contracts,    "wha.s 
the  market  value  of  property  at   any   particular   tm,e,    the  jury 
mav  sometimes  take  a  wide  range  ;   for  this  is  not  always  ascei- 
tainablc  by  precise  facts,  but  must  sor..etimes  rest  on  opinion; 
and  it  would  seem  that  neither  party  ought  to  gain  or  lose  by  a 
mere  fancy  price,  or  nn  inflated  and  accidental  value,  sudden  y 
put  in  foixe  by  some  speculative    movement,    and   as  sudde.rly 
passing  away.     The  question  of  damages  %  a  marke    value  is 
peculiarlv  one  for  a  jury."     Parsons  on  Contracts  [l.d    ib,,  J 
vol    2,  p.  482.     In  .Smith  V.   Griillth,  3  Hill,   337-?,   C-  J- 
Xelsonsaid:      "I  admit  that  a  mere    speculating  price   of  the 
article,  got  up  by  the  contrivance  of   a  few   interested  dealers 
is  not  the  true  test.     The   law,    in   regulathig   '1-  measure  o 
damages,  contemplates  a  range   of   the   entire  market,   and    he 
.  -eraSe  ^f  prices,  as  thus  found,  running  through  a  reasonable 
period  of  time.     Neither  a  sudden  and  transient  -nA^^t^"'  "-- 
depression  of  prices,  should   control   the   n"-t'o„.     1  hese  a  e 
often  accidental,  promoted  by  interested  and  >1  egitnna  e  com- 
b  nations,  for  temporary,  special,  and  selfish  objects,  mdepend- 
e      of  th    objects  of  lawful   commerce:    a  forced  and  violent 
"vversionofthelawsof  trade,   not  within  the  contemplation 
of  the  regular  dealer,  and   not  deserving  to   be   regarded  as  a 
i^per  b^sis  upon  which  to  determine  the  value    when  t  e^act 
lecomes  material  in   the   administration  of  justice.        I   may 
close   these   sayings  of   eminent  jurists   with   ^  e     angtiage  c^^ 
Chief  Justice   Gibson,   upon  stock-jobbing  contract        W  .1  on 
D.    is    SW     &  S     523.     "To  have  stipulated,"   says  he, 
"for'arightto"recrui;  on  separate  account,  would  hav-e  given 
to  the  agreement  an  appearance  of  trick,  like  those   of  stock- 
obbing  contracts,  to  deliver  a  given  number  of  shares  at  a  cc- 


366       .MODICS  OK   OIITAINMNC;   Tni.K   TO   PKKSONAI,   I'llOI'KU  lY. 

tain  clay,  in  wliich  the  seller's  performance  iias  been  forestalled 
liy  what  is  called  cornering;  in  other  words,  buying  up  all  the 
floating  shares  in  the  market.  These  contracts,  like  other 
stock-jobbing  transactions,  in  which  parties  deal  upon  honor, 
are  seldom  subjected  to  the  test  of  judicial  experiment,  but  they 
would  necessarily  be  declareil  fraudulent." 

Without  adding  more,  I  think  it  is  conclusively  shown  that 
what  is  called  the  market  price,  or  the  quotations  of  the  articles 
for  a  given  day.  is  not  always  the  only  evidence  of  actual  value, 
but  that  the  true  value  may  be  drawn  from  other  sources,  when 
it  is  shown  that  the  price  for  the  particular  day  had  been 
unnaturally  inflated.  It  remains  only  to  ascertain  whether  the 
defendant  gave  such  evidence  as  to  recjuire  the  court  to  submit 
to  the  jury  to  ascertain  and  determine  the  fair  market  value  of 
crude  oil  per  gallon,  on  the  thirty-first  of  December,  1869,  as 
demanded  by  the  defendant  in  his  fifteenth  point.  There  was 
evidence  from  which  the  jury  might  have  adduced  the  follow- 
ing facts,  viz. :  That  in  the  month  of  October,  1S69,  a  num- 
ber of  persons  of  large  capital,  and  among  them  Kirkpatrick& 
Lyons,  combined  together  to  purchase  crude  oil,  and  hold  it 
until  the  close  of  the  year  1S69;  that  these  persons  were  the 
holders,  as  purchasers,  of  a  large  number  of  sellers'  option 
contracts,  similar  to  the  one  in  suit ;  that  they  bought  oil  largely, 
and  determined  to  hold  it  from  the  market  until  the  year  1S70 
before  selling;  that  oil,  in  consequence  of  this  combination, 
ran  up  in  price,  in  the  face  of  an  increased  supply,  until  the 
thirty-first  day  of  December,  1S69,  reaching  the  price  of  seven- 
teen to  eighteen  cents  per  gallon,  and  then  suddenly  dropped 
as  soon  as  the  year  closed.  Major  Frew,  one  of  the  number, 
says:  "It  was  our  purpose  to  take  the  oil,  pay  for  it,  and 
keep  it  until  January  i,  1S70,  otherwise  we  would  have  been 
heading  the  market  on  ourselves.  Mr.  Long  says  that  on  the 
third  of  January,  1S70,  he  sold  oil  to  Fisher  &  Brother  (the 
plaintiffs)  at  thirteen  cents  a  gallon,  and  could  find  no  other 
purchaser  at  that  price.  Several  witnesses,  dealers  in  oil,  tes- 
tify that  they  knew  of  no  natural  cause  to  create  such  a  rise  in 
price,  or  to  make  the  difference  in  price  from  December  to 
January.  It  was  testified,  on  the  contrary,  that  the  winter  pro- 
duction of  oil  was  greater  in  December,  1869,  than  in  former 
years  by  several  thousand  barrels  per  day,    a   fact   tending  to 


ONAI.  I'llOI'KU TY. 

e  has  been  forestalled 
lis,  buyinj;  up  all  the 
contracts,  like  other 
ties  deal  upon  honor, 
I  experiment,  but  they 

ncliisively  shown  that 
tations  of  the  articles 
lence  of  actual  value, 
1  other  sources,  when 
icular  day  had  been 
ascertain  whether  the 
e  the  court  to  submit 
fair  market  value  of 

December,  1869,  as 
1  point.      There    was 

adduced  the  foUow- 
ctober,  1S69,  a  num- 
5  them  KirkpatrickiV: 
udc  oil,  and  hold  it 
se  persons  were  the 
er  of  sellers'  option 
ey  bought  oil  largely, 
:  until  the  year  1S70 
of  this  combination, 
ed  supply,  until  the 
ig  the  price  of  seven- 
en  suddenly  dropped 
one  of  the  number, 
i  oil,  pay  for  it,  and 
ve  would  have  been 
.ong  says  that  on  the 
isher  &  Brother  (the 

could  find  no  other 
:s,  dealers  in  oil,  tes- 

create  such  a  rise  in 
;  from  December  to 
■,  that  the  winter  pro- 
869,  than  in  former 
y,    a   fact   tending  to 


KOUNTZ    V.   KlKKrATUlCK. 


367 


reduce  the  price,  when  not  sustained  by  other  means.  Mr. 
Iknn  says  he  knew  no  cause  for  the  sudden  fall  in  price 
on  the  first  of  January,  1870,  except  that  the  so-called  combina- 
tion ceased  to  buy  at  the  last  of  December,  1869. 

It  was,  therefore,  a  fair  (luestion  for  the  jury  to  determine 
whether  the  price  which  was  demanded  for  oil  on  the  last  day 
of  December,  1869,  was  not  a  fictitious,  unnatural,  intlated,  and 
temporary  price,  the  result  of  a  combination  to  "bull  the  mar- 
ket," as  it  is  termed,  and  to  compel  sellers  to  pay  a  false  and 
swollen  price  in  order  to  fulfill  their  contracts.  If  so,  then  such 
price  was  not  a  fair  test  of  the  value  of  the  oil,  and  the  jury 
would  be  at  liberty  to  determine,  from  the  prices  before  ami 
after  the  day,  and  from  other  sources  of  information,  the  actual 
market  value  of  the  oil  on  the  thirty-first  of  December,  1S69. 
Any  other  cause  would  be  unjust  and  injurious  to  fair  dealers, 
and  would  enable  gamblers  in  the  article  to  avail  themselves  of 
their  own  wrong,  and  to  wrest  from  honest  dealers  the  fruits  of 
their  business.  It  can  not  be  possible  that  a  '"corner,"  such  as 
took  place  a  few  weeks  since  in  the  market  for  the  stock  of  a 
western  railroad  company,  where  shares,  worth  in  the  ordinary 
market  about  sixty  dollars  each,  were  by  the  secret  operations 
of  two  or  three  large  capitalists,  forced  up  in  a  few  days  to  a 
price  over  two  hundred  dollars  a  share,  can  be  a  lawful  meas- 
ure of  damages.  Men  are  not  to  be  stripped  of  their  estates 
by  such  cruel  and  wrongful  practices;  and  courts  of  justice  can 
not  so  wholly  ignore  justice  as  to  assume  such  a  false  standard 
of  compensation.  Our  views  upon  the  effect  of  the  afiidavit  of 
defense,  on  which  the  learned  judge  in  a  great  measure  rules 
the  question  of  damages,  will  be  expressed  in  the  case  of 
Kountz  V.  The  Citizens'  Oil  Refining  Co.  [72  Pa.  St.  393], 
in  an  opinion  to  be  read  immediately. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded. 

Consult— James  v.  Muir,  33  Mich.  223;  Shealy  v.  Edwards,  73  Ala. 
175,  49  Am.  Rep.  43;  Taft  v.  Tr.nis,  136  Mass.  95;  Lovejoy  v.  Miehels, 
SS  Mich.  15;    Morrison  v.  Smith,  130  111.  304. 


3')S       MODKS  Ol-  oniAININti    1111. IC  TO  I'KKSON.M.  I'UOl'iillTY. 

2.      The  Statute  of  Frauds. 

§  69.    What  are  goods,  wares,  and  merchandise. 
TISDALi:  V.  HARRIS. 

[20  Pick.  9.] 

Supreme  Judieial  Court  of  Massaehu^etts,  1838. 

Shaw,  C.  |. — I^ut  by  far  tlic  most  important  question  in  the 
case  arises  on  tlie  objection,  that  tiic  case  is  within  the  statute 
of  frauds.  This  statute,  wliich  is  co])icci  precisely  from  the 
Enfjiish  statute,  is  as  follows:  "No  contract  for  the  sale  of 
goods,  wares,  or  merchandise  for  tlie  price  of  ten  j^ounds 
($33.33)  or  more,  shall  be  allowed  to  be  j?ood,  except  the 
purchaser  shall  accept  part  of  the  ^oods  so  sold,  and  actually 
receive  the  same,  or  give  something  in  earnest  to  bind  the  bar- 
gain, or  in  part  payment,  or  that  some  note  or  memorandum 
in  writing  of  the  said  bargain  be  made  and  signed  by  the  par- 
ties to  be  charged  by  such  contract,  or  their  agent  therei  iito 
lawfully  authorized." 

This  being  a  -contract  for  the  sale  of  shares  in  an  incorporated 
company  in  a  ncighi)oriiig  state,  for  the  price  of  more  than  ten 
pounds,  and  no  part  iiaving  been  delivered,  and  no  purchase- 
money  or  earnest  paid,  the  question  is,  whether  it  can  be 
allowed  to  be  good,  without  a  note  or  memorandum  in  writing, 
signed  by  the  party  to  be  charged  with  it.  This  depends  upon 
the  question,  whether  such  shares  are  goods,  wares,  or  mer- 
chandise within  the  true  meaning  of  the  statute. 

It  is  somewhat  remarkable  that  this  question,  arising  on  the 
St.  2y  Car.  II.,  in  the  same  terms,  which  ours  has  copied,  has 
not  been  definitely  settled  in  England.  In  the  case  of  Pick- 
ering V.  Appleby,  Com.  Rep.  354,  the  case  was  directly  and 
fully  argued,  before  the  twelve  judges,  who  were  equally 
divided  upon  it.  But  in  several  other  cases  afterward  deter- 
mined in  chancery,  the  better  opinion  seemed  to  be,  that  shares 
in  incorporated  companies  were  within  the  statute  as  goods  or 
merchandise.  Mussell  v.  Cooke,  Finch.  Free.  533 ;  Crull  v. 
Dodson,  Sel.  Cas.  Ch.  41. 


«i 


IISONAL  I'UOPlillTY. 

rands. 

nerchandise. 
RIS. 

!sac/ii/.<!c/fs,  jSj8. 

iportant  question  in  the 
5e  is  within  the  statute 
)iccl  precisely  from  the 
ontract  lor  the  sale  of 
!  price  of  ten  pounds 
o  be  j^ood,  except  the 
s  so  sold,  and  actually 
earnest  to  bind  the  bar- 
note  or  memorandum 
and  signed  by  the  par- 
•   their   agent   therei  ;  to 

hares  in  an  incorporated 
2  price  of  more  than  ten 
ired,  and  no  purchase- 
is,  whether  it  can  be 
nemorandum  in  writing, 
it.  This  depends  upon 
goods,  wares,  or  mer- 
i  statute. 

question,  arismg  on  the 
ch  ours  has  copied,  has 
I.  In  the  case  of  Pick- 
2  case  was  directly  and 
ges,  who  were  equally 
cases  afterward  deter- 
leemed  to  be,  that  shares 
the  statute  as  goods  or 
:h.  Free.   533;   CruU  v. 


TISDAI.K    V.     IIAUIUS. 


369 


We  are  inclined  to  the  opinion  that  the  weight  of  authorities 
in  modern  times,  is.  that  c<,ntracts  for  the  sale  of  stocl<s  ami 
shares  in  incorporated  companies,  for  m..re  tlian  ten  pounds, 
are  not  valid,  unless  there  has  been  a  note  or  me.norandum  m 
writing,  or  earnest  or  part  payment.  4  Wheat.  S9,  note ;  3 
Starkie,  Kv.  [j  Am.  Ed.]  6(.S. 

Supposing  this  a  new  question  now  for  the  tlrst  tune  calling 
for  a  construction  of  the  statute,  the  court  are  of  opmion  that 
a.  well  by  its  terms  as  its  general  policy,  stocks  are  fanly 
within  its  operation.  The  words  -goods"  and  "merchandise,' 
are  both  of  very  large  signification.  "Bona,"  as  used  in  the 
civil  law,  is  almost  as  extensive  as  personal  property  itself,  aiul 
in  many  respects  it  has  nearly  as  large  a  signification  m  the 
common  law.  The  word  "merchandise"  also  including,  in 
general,  objects  of  traffic  and  comnuiM-,  is  broad  enough  to 
rnclude  stocks  or  shares  in  incorporated  c^npanies. 

There  are  many  cases  indeed   in  which   it   has  been   held    in 
England  that  buying  and  selling  st.,.ks  did  notsubjct  a  p.Mson 
to  the  operation  of  the  bankrupt  1..as,   and  thenc.    it  has  been 
.u<nied  tliat  they  can  not  be  considered  as   nerchandise,  because 
bankruptcy  extends  to  persons  using  the  H  ude  of  merchandre. 
But  it  must  be  recollected  that  the  bankrupt  acts  were  deemed 
to  be  hi>'hlv  penal  and  coercive,  and  tended  to  deprive  a  man 
in  trade  of 'all  his  property.     But  most  joint  stock  companies 
were  founded  on  the  hypothesis  at  least,  that  most  of  the  saare- 
holders  took  shares  as  an  investment  and  not  as  an  object  of 
traffic  •    and  the  construction  in   question  only  decided  that  by 
taking   and  holding  such   shares   merely   as   an  investment,   a 
man  should  not  be  deemed  a  merchant  so  as  to  subject  himself 
to  the  highly  coercive  process  of   the  bankrupt   laws.     These 
cases,  therefore,  do  not  bear  much  on  the  general  question. 
'  The  main  argument  relied  upon,  by  those  who  contend  that 
shares  are  not  within  the   statute,    is   this:     That  the   statute 
provides    that    such    contract    shall    not  be   good,  etc.,  among 
other  things,    except  the  purchaser   shall    accept   part  of  the 
-oods.     From  this  it  is   argued  that  by  necessary   implication 
The  statute  applies  only  to  goods  of  which  part  may  be  deliv- 
ered.    This  seems,  however,  to  be  rather  a  narrow  and  forced 
construction.     The  provision  is   general,   that  no  contract  for 

5# 


370 


MODKS  OF  OmAlNlNG  TITLK   TO  I'KHSONAI.  I'KOl'KKTY. 


the  sale  of  goods,  etc.,  shall  be  allowed  to  be  good.  Th 
exception  is,  when  part  are  delivered  ;  but  if  part  can  not  bi 
delivered,  then  the  exception  can  not  exist  to  take  the  case  on 
of  the  general  prohibition.  The  provision  extended  to  a  grea 
variety  of  objects,  and  the  exception  may  well  'ne  construed  t 
apply  only  to  such  of  those  objects  to  which  it  is  applicable 
without  affecting  others,  to  which  from  their  nature  it  can  no 
apply. 

Thci-e  is  nothing  in  the  nature  of  stocks,  or  shares  in  com 
panics,  which  in  reason  or  sound  policy  should  exempt  cor 
tracts  in  respect  to  them  from  those  reasonable  restrictions 
designed  by  the  statute  to  prevent  frauds  in  the  sale  of  othe 
commodities.  On  the  contrary,  these  companies  have  liecom 
so  numerous,  so  large  an  amount  of  the  property  of  the  con- 
munity  is  now  invested  in  them,  and  as  the  ordinary  indicia  c 
property,  arising  from  delivery  and  possession,  can  not  tak 
place,  there  seems  to  be  peculiar  reason  for  extending  the  pre 
visions  of  this  statute  to  them.  As  they  may  properly  b 
included  under  the  term  "goodo,"  as  they  are  within  the  reaso 
and  policy  of  the  act,  the  court  are  of  opinion,  that  a  contra 
for  the  sale  of  shares,  in  the  absence  of  the  other  reeiuisito: 
must  be  proved  by  some  note  or  memorandum  in  writing;  an 
as  there  was  no  such  memoraiidum  in  writing,  in  the  presei 
case,  the  plaintiff  is  not  entitled  to  maintain  this  action.  A 
to  the  argument  that  here  was  a  part  performance,  by  a  pa; 
ment  of  the  money  on  one  side,  and  the  delivery  of  the  certit 
cate  on  the  other,  these  acts  took  place  after  this  action  wt 
brought,  and  can  not,  therefore,  be  relied  upon  to  show  a  cans 
of  action  when  the  action  was  commenced. 

Verdict  set  aside,  and  plaintiff  nonsui 

Consult— Pray  V.  Mitchell,  60  Me.  430;  Boardman  v.  Cutler,  i: 
Miss.  3SS;  Fine  V.  Hornsby,  2  Mo.  (App.)  61 ;  Somerby  v.  Uuntin,  11 
Mass.  279,  19  Am.  Rep.  459;  Green  v.  Brookings,  23  Mich.  48,  9  Ai 
Rep,  74;  Killinore  v.  Hewlett,  4S  N.  Y.  569;  Purner  v.  Piercy,  40  M 
212,  17  Am.  Rep.  591;  Marshall  v.  Ferguson,  23  Cal.  65;  Kingsley 
Holbrook,  45  N.  II.  313,  86  Am.  Dec.  173;  Powell  v.  McAskan,  28  M 
70;  Cent.  Branch  R.  Co.  v.  Fritz,  20  Kan.  430,  27  Am,  Rep.  175;  Job 
son  V.  Buck,  35  N.  J.  (L.)  338,  10  Am.  Rep.  273;  Ide  v.  Stanton, 
Vt.  6S5,  ir  Am.  Dec.  698. 


rKKSONAr-  I'ROl'KUTY 


Dwccl  to  be  good.  The 
;  but  if  part  can  not  be 
exist  to  take  the  case  out 
,'ision  extended  to  a  >i;rcat 
may  well  lie  coiistrned  to 
3  which  it  is  applicable, 
)m  their  nature  it  can  not 

stocks,  or  shares  in  com- 
Dolicy  should  exempt  con- 
e  reasonable  restrictions, 
luds  in  the  sale  of  other 
e  companies  have  l)ecome 

the  proj^erty  of  the  com- 
as the  ordinary  indicia  of 

possession,  can  not  take 
ion  for  extending  the  pro- 
\s  they  may  properly  be 
i  they  are  within  the  reason 
)f  opinion,  that  a  contrac 
e  of  the  other  reeiuisitos, 
norandum  in  writing;  and 
in  writing,  in  the  present 
naintain  this  action.  As 
rt   performance,  by  a  pay- 

the  delivery  of  the  certiti- 

ace   after  this  action  was 

died  upon  to  show  a  cause 

eiiccd. 

side,  and  plaintiff  nonsuit. 

50;  Boardman  v.  Cutler,  12S 
)  6r;  Somerby  v.  Huntin,  iiS 
trookings,  33  Mich.  48,  9  Am. 
69;  Punier  v.  Piercv,  40  Mil. 
son,  23  Cal.  65;  Kingsley  V. 
);  Powell  V.  McAskan,  28  Mo. 
,  430,  27  Am,  Rep.  175;  John- 
Rep.    273;   Ide  V.  Stanton,   15 


MODES  OF   OnrAlMNT.   TITLE  TO   PKHSON.M-   rUOl'KRTV.        37  I 

S  70.     Contracts   for   work,   labor,   and   materials— The 
English  doctrine. 

LEE  V.  GRIFFIN. 

[I   R.  &  S.  272.] 

English   Court  of  >^iicc>i's  Bench,   i86l. 

Declaration  against  the  defendant,  as  the  executor  of  one 
Frances  P.,  for  goods  bargained  and  sold,  goods  sold  and  deliv- 
ered, and  for  work  and  laVior  done  and  materials  provided  by 
the  plaintiff  as  a  surgeon  dentist  for  the  said  Frances  P. 

Plea,  that  the  said  Francis  P.  never  was  indebted  as  alleged. 

The  action  was  brought  to  recover  the  sum  of  £21  for  two 
sets  of  artificial  teeth  ordered  by  the  deceased. 

At  the  trial,  before  Crompion,  J.,  at  the  sittings  for  Middle- 
sex after  Michaelmas  term,  1S60,  it  was  proved  by  the  plaintiff 
that  he  had,  in  pursuance  of  an  order  from  the  deceased,  pre- 
pared a  model  of  her  mouth,  and  made  two  sets  of  artificial 
teeth ;  as  soon  as  they  were  ready  he  wrote  a  letter  to  the  de- 
ceased, requesting  her  to  appoint  a  day  when  he  could  see  her 
for  the  purpose  of  fitting  them.  To  this  communication  the 
deceased  replied  as  follows:  — 

"My  bear  Sir: — I  regret,  after  your  kind  effort  to  oblige  me, 
my  health  will  prevent  my  taking  advantage  of  the  early  day. 
1  fear  I  may  not  be  able  for  some  days.     Yours,  etc., 

"Frances  P." 

Shortly  after  writing  the  above  letter  Frances  P.  died.  On 
these  facts  the  defendant's  counsel  contended  that  the  plaintiff 
ought  to  be  nonsuited,  on  the  ground  that  there  was  no  evidence 
of  a  delivery  and  acceptance  of  the  goods  by  the  deceased,  nor 
any  memorandum  in  writing  of  a  contract  within  the  meaning  of 
the  seventeenth  section  of  the  statute  of  frauds,  29  Car.  3,  c. 
3,  and  the  learned  judge  was  of  that  opinion.  The  plaintiff's 
counsel  then  contended  that,  on  the  authority  of  Clay  v.  Yates,  i 
II.  it  N.  73,  the  plaintiff  could  recover  in  the  action  on  the  count 
for  work  and  labor  done,  and  materials  provided.  The  learned 
judge  declined  to  nonsuit,  ar.d  directed  a  verdict  for  the  amount 
claimed  to  be  entered  for  the  plaintiff,  with  leave  to  the  defend- 
ant to  move  to  enter  a  nonsuit  or  verdict. 


372       MODES  OF  OBTAINING  TITLK   TO  PERSONAL  PROPERTV. 

Crompton,  J.— I  think  that  this  rule  ought  to  be  made  aliso- 
lute.  On  the  second  point  I  am  of  the  same  opinion  as  I  was 
at  the  trial.  There  is  not  any  sufficient  memorandum  in  writ- 
in.'  of  a  contract  to  satisfy  the  statute  of  frauds.  The  case  de. 
cided  in  the  house  of  lords,  to  which  reference  has  been  made 
during  the  argument,  is  clearly  distinguishab'c.  That  case  only 
decided  that  if  a  document,  which  is  silent  as  to  the  particulars 
of  a  contract,  refers  to  another  document  which  contains  such 
particulars,  parol  evidence  is  admissible  for  the  purpose  of  show- 
ing what  document  is  referred  to.  Assuming,  in  this  case,  that 
the  two  documents  were  sufficiently  connected,  still  there  would 
not  be  any  sufficient  evidence  of  the  contract.  The  contract  in 
question  was  to  deliver  some  particular  teeth,  to  be  made  in  a 
particular  way,  but  these  letters  do  not  refer  to  any  particular 
bargain,  nor  in  any  manner  disclose  its  terms. 

The  main  question  which  arose  at  the  trial  was,  whether  the 
contract  in  the  second  count  could  be  treated  as  one  for  work 
and  labor,  or  whether  it  was  a  contract  for  goods  sold  and  de- 
livered.    The  distinction  between  these  two  causes  of  action  is 
sometimes  very  fine ;  but  where  the  contract  is  for  a  chattel  to 
be  made  and  delivered,  it  clearly  is  a  contract  for  the  sale  of 
.Toods.     There  are  some  cases  in  which  the  supply  of  the  mate- 
Hals  is  ancillary  to  the  contract,  as  in  the  case  of  a  printer  sup- 
plying the  paper  on  which  a  book  is  printed.    In  such  a  case  an 
action  might  perhaps  be  brought  for  work  and  labor  done  and 
materials  provided,   as  it  could  hardly  be  said  that  the  subject- 
matter  of   the  contract  was    the  sale  of  a  chattel ;   perhaps  it 
is  more  in  the  nature  of  a  contract  merely  to  exercise  skill  and 
labor.     Clay  v.  Yates,  i  H  &  N.  73'  t"''"^^  °"  ''^  o"'"  peculiar 
circumstances.     I  entertain  some  doubt  as  to  the  correctness  of 
that  decision;   but  I  certainly  do   not  agree   to  the  proposition 
that  the  value  of  the  skill  and  labor,  as  compared  to  that  of  the 
material  supplied,  is  a  criterion  by  which  to  decide  whether  the 
contract  be  for  work   and   labor,    or   for  the  sale  of  a  chattel. 
.    Here,  however,  the  subject-matter  of  the  contract  was  the  sup- 
ply of  goods.     The  case  bears  a  strong  resemblance  to  that  of 
a  tailor  supplying  a   coat,   the  measurement  of  the  mouth  and 
fitting  of  the  teeth  being  analogous  to  the  measurement  and  fit- 
ting of  the  garment. 


RSOXAL  PUOPERTS'. 

)tight  to  be  made  abso- 
same  opinion  as  I  was 
:  memoranilum  in  writ- 
frauds.  The  case  dc. 
"crence  has  been  made 
shal-'c.  That  case  only 
nt  as  to  the  particulars 
nt  which  contains  such 
:or  the  purpose  of  show- 
iming,  in  this  case,  that 
lected,  still  there  would 
tract.  The  contract  ia 
teeth,  to  be  made  in  a 
t  refer  to  any  particular 
terms. 

;  trial  was,  whether  the 
reated  as  one  for  work 
for  goods  sold  and  de- 
two  causes  of  action  is 
tract  is  for  a  chattel  to 
contract  for  the  sale  of 
the  supply  of  the  mate- 
le  case  of  a  printer  sup- 
nted.  In  such  a  case  an 
ork  and  labor  done  and 
be  said  that  the  subject- 
)f  a  chattel ;  perhaps  it 
ely  to  exercise  skill  and 
rned  on  its  own  peculiar 
as  to  the  correctness  of 
,gree  to  the  proposition 
compared  to  that  of  the 
;h  to  decide  whether  the 
r  the  sale  of  a  chattel. 
lie  contract  was  the  sup- 
g  resemblance  to  that  of 
MTient  of  the  mouth  and 
he  measurement  and  fit- 


LKE    V.   lilMKI'MX. 


O/.') 


ITiKL,  J. — I  am  of  the  same  opinion.  I  think  that  the  deci- 
sion in  Clay  v.  Yates,  i  II.  &  N.  73,  is  perfectly  right.  That 
was  not  a  case  in  which  a  party  ordered  a  chattel  of  another 
which  was  afterward  to  be  made  and  delivered,  but  a  case  in 
which  the  subject-matter  of  the  contract  was  the  exercise  of  skill 
and  labor.  Wherever  a  contract  is  entered  into  for  the  manu- 
facture of  a  chattel,  there  the  subject-matter  of  the  contract  is 
the  sale  and  delivery  of  the  chattel,  and  the  party  supplying  it 
can  not  recover  for  work  and  labor.  Atkinson  v.  Hell,  8  13.  &. 
C.  a"?  is,  in  my  opinion,  good  hav,  with  the  exception  of  the 
dictum  of  Bayley,  J.,  which  is  repudiated  by  Maule,  J.,  in 
Grafton  v.  Armitage,  2  C.  B.  339,  where  he  says.  "In  order  to 
sustain  a  count  for  work  and  labor,  it  is  not  necessary  that  the 
work  and  labor  should  be  performed  upon  materials  that  are 
I  the  property  of  the  plaintiff."     And  Tindal,  C.  J.,  in  hisjudg- 

I  ment  in  the  same  case,  page  340,  points  out  that  in  the  applica- 

j  tion  of  the  observations  of  Bayley,  J.,  regard  must  be  had  to  the 

particular  facts  of  the  case.  In  every  other  respect,  therefore, 
the  case  of  Atkinson  v.  Bell,  S  B.  &  C.  277,  is  law.  I  think 
that  these  authorities  are  a  complete  answer  to  the  point  taken 
at  the  trial  on  behalf  of  the  plaintiff. 

When,  however,  the  facts  of  this  case  are  looked  at,  I  cannot 
see  how,  wholly  irrespective  of  the  question  arising  under  the 
statute  of  frauds,  this  action  can  be  maintained.  The  contract 
entered  into  by  the  plaintiff  with  the  deceased  was  to  supply 
two  sets  of  teeth,  which  were  lo  be  made  for  her  and  fitted  to 
her  mouth,  and  then  to  be  paid  for.  Through  no  default  on 
her  part,  she  having  died,  they  never  were  fitted  ;  no  action  can 
therefore  be  brought  by  the  plaintiff. 

Blackburn,  J. — On  the  second  point,  I  am  of  opinion  that 
the  letter  is  not  a  sutVicient  memorandum  in  writing  to  take  the 
case  out  of  the  statute  of'frauds. 

On  the  other  point,  the  question  is  whether  the  contract  was 
one  for  the  sale  of  goods  or  for  work  and  labor.  I  think  that 
in  all  cases,  in  order  to  ascertain  whether  the  action  ought  to  be 
brought  for  goods  sold  and  delivered,  or  for  work  and  labor 
done  and  materials  provided,  we  must  look  at  the  particular 
contract  entered  into  between  the  part.es.  If  the  contract  be 
such  that,  when  carried  out,  it  would  result  in  the  sale  of  a 
chattel,   the  party  can  not  sue  for  work  and  labor ;  but   if  the 


Mi 


374       MODES  OF  OHTA1NINO  TITI.F.  TO  PKUSONAr,  PKOI'KUTY. 

result  of  the  contract  is  that  the  party  has  done  work  and  hibor 
which  ends  in  nothing  that  can  become  the  subject  of  a  sale,  the 
party  can  not  sue  for  goods  sold  and  delivered.     The  case  of  an 
attorney  employed  to  prepare   a   deed   is  an  ilhu.cration  of  this 
latter  proposition.     It  can  not  be  said  that  the  paper  and  ink  he 
uses  in  the  preparation  of  the  deed  are  goods  sold  and  delivered. 
The  case  of  a  printer  printing  a  book  would  most  probably  fall 
within  the  same  category.   In  Atkinson  v.  Hell,  S  13.  &.  C.  277, 
the  contract,  if  carried  out,  would  have  resulted  in  the  sale  of  a 
chattel.     In   Grafton  v.  Armitage,  2  C.  H.  340,  Tindal,  C.  J., 
lavs  down  this  very  principle,      lie  draws  a  distinction  between 
the  cases  of  Atkinson  v.  Hell,   8    B.   <S:   C.  377,  and  that  before 
him.     The  reason  he  gives  is  that,  in  the  former  case  "the  sub- 
stance of  the  contract  was  goods  to  be  sold  and  delivered  by  the 
one  party  to  the  other;"  in  the  latter,  "there  never  was  any  in- 
tention to  make  anything  that  could  properly  become  the  subject 
of  an  action  for  goods  sold  and  delivered."     I   think    that  dis- 
tinction reconciles  those  two  cases,  and  the  decision  of  Clay  v. 
Yates,    I    II.    &   N.   73,  is  not  inconsistent  with  them.      In  the 
present  case  the   contract  was  to  deliver  a  thing  which,   when 
completed,    would   have   resulted   in  the  sale  of  a  chattel;   in 
other  words,  the  substance  of  the  contract  was  for  goods  sold 
and  delivered.      I  do   not   think   that  the  test  to  apply  to  these 
cases  is  whether  the  value  of  the  work  exceeds  that  of  the  ma- 
terials used   in    its  execution;   for,  if  a  sculptor  were  employed 
to  execute  a  work  of  art,  greatly  as  his  skill  and  labor,  suppos- 
ing it  to  be  of  the  highest   description,   might  exceed  the  value 
of  the  marble  on  which  he  worked,  the  contract  would,   in  my 
opinion,  nevertheless  be  a  contract  for  the  sale    of   a    chattel. 

Rule  absolute. 


Consult— Burrell  v.  Ilighleyman,  33  Mo.  (App.)  183;  Pratt  v.  Mil- 
ler, io<)  Mo.  78;  Harilell  v.  McClure,  i  Chand.  271;  Brown  v.  Sanborn, 
21  Minn.  402;  Prescott  v.  Locke,  51  N.  II.  94. 


SONAI,   PKOrKUTY. 

1  done  work  and  labor 
e  siiliject  of  a  sale,  the 
vercd.     The  case  of  an 

an  ilhif.cration  of  this 
it  the  paper  and  ink  he 
ads  sold  and  ilelivered. 
mid  most  probably  fall 
■.  Bell,  S  13.  &  C.  377, 
esulted  in  the  sale  of  a 
B.  340,  Tindal,  C.  J., 
s  a  distinction  between 
Z.  2'j'j,  and  that  before 

2  former  case  "the  sub- 
Id  and  delivered  by  the 
here  never  was  any  in- 
!rly  become  the  subject 
1."  I  think  that  dis- 
the  decision  of  Clay  v. 
int  with  them.  In  the 
;r  a  thing  which,  when 
,■  sale  of  a  chattel ;  in 
■act  was  for  goods  sold 
e  test  to  apply  to  these 
.'xceeds  that  of  the  nia- 
iCulptor  were  employed 
skill  and  labor,  suppos- 
might  exceed  the  value 
contract  would,  in  my 
the  sale   of   a    chattel. 

Rule  absolute. 

(App.)  183;   Pratt  V.  Mil- 
i.  271;   Brown  v.  Sanborn, 


MODES  or-  OnTAININC   TITKE  TO   l'Kl{S(  )NAI-  lM{(JiMiUrY.        375 

§  71.    Same— The  Massachusetts  doctrine. 
GODDARD  V.  BINNEY. 

[115  Mass.  450;  15  Am.  Rep.  112.] 

S/ipi-cinc  Judicial  Court  of  Massachusetts.  1^74- 

Contract  to  recover  the  price  of  a  buggy  built  by  plaintiff  for 
defendant.  Plaintiff  agreed  to  build  a  buggy  for  defendant, 
and  to  deliver  it  at  a  certain  time.  Defendant  gave  special 
directions  as  to  style  and  fuiish.  The  buggy  was  built  accord- 
ing to  directions.  Before  it  was  finished,  defendant  called  to 
see  it,  and  in  answer  to  plaintiff,  who  asked  him  if  he  would 
sell  it,  said  no ;  that  he  would  keep  it.  When  the  buggy  was 
finished,  plaintiff  sent  a  bill  for  it,  which  defendant  retained, 
promising  to  see  plaintiff  in  regard  to  it.  The  buggy  was 
afterward  burned  in  plaintiff's  possession.  The  case  was 
reported  to  the  supreme  judicial  court. 

v  ..-t-  T  \\/^liotlinr  on  nnpvppi-npnt  liWf>  tbnt  flosrribnd  in  this 
report  should  be  considered  as  a  contract  for  the  sale  of  goods, 
within  the  meaning  of  the  statute  of  frauds,  or  a  contract  for 
labor,  services,  and  materials,  and  therefore  not  within  that 
statute,  is  a  question  upon  which  there  is  a  conflict  of  authority. 
According  to  a  long  course  of  decisions  in  New  York,  and  in 
some  other  states  of  the  Union,  an  agreement  for  the  sale  of 
any  commodity  not  in  existence  at  the  time,  but  which  the 
vendor  is  to  manufacture  or  put  in  a  condition  to  be  delivered 
(such  as  ilour  from  wheat  not  yet  ground,  or  nails  to  be  made 
from  iron  in  the  vendor's  hands),  is  not  a  contract  of  sale  \<ithin 
the  meaning  of  the  statute.  Crookshai  k  v.  Burrell,  i8  Johns. 
58;  Sewall  V.  Fitch,  8  Cow.  215;  Robertson  v.  Vaughn,  5 
Sandf.  i;  Downs  v.  Ross,  23  Wend.  270;  Eichclberger  v. 
M'Cauley,  5  liar.  &  J.  213.  In  England,  on  the  other  hand, 
the  tendency  of  the  recent  decisions  is  to  treat  all  contracts  of 
such  a  kind  intended  to  result  in  a  sale,  as  substantially  con- 
tracts for  the  sale  of  chattels;  and  the  decision  in  Lee  v.  Grif- 
fin, I  B.  &  S.  272,  goes  so  far  as  to  hold  that  a  contract  to 
make  and  fit  a  set  of  artificial  teeth  for  a  patient  is  essentially  a 


37^       MODKS  OF  OUTAINIVG  TITLE  TO  PKHSOXAI.   I'HOPKUTV, 


contract  for  tlie  sale  of  goods,  and,  tlicicforc,  is  siiltjcct  to  llic 
provisions  of  the  statute.  See  Maherley  v.  Shcppard,  lo  Hinij;. 
99;  Howe  V.  Palmtr.  3  13.  &  Aid.  321;  Baidey  v.  Parker.  3 
B.  &  C.  37;   Ati<inson  v.  Ikll,  S  H.  A:  C.  277. 

In  this  commonwealth,  a  rule  avoiding  buth  of  these  extremes 
was  established  in  Mixer  V.    ITowarth,    3i   Pick.    205,   and   has 
been  recognized  and  alllrmed  in  repeated  decisions  of  more  recent 
date.      The  eflect  of  these  decisions  we  understand  to  be    this, 
namelv,  that  a  contract  for  the  sale  of  articles  then  existing  or 
such  as  the  vendor  in  the  ordinary  course  of  his  business  manu- 
factures or  procures  for  the  general  market,  whether  on  hand 
at  the  time  or  not,  is  a  contract  for  the  sale  of  goods,  to  which 
the  statute  applies.      But  on  the  other  hand,  if  the  goods  are  to 
be  manufactured    especially  for  the   purchaser,    and  upon  his 
special  order,  and  not  for  the  general  market,   the   case   is  not 
within  the  statute.     Spencer  v.  Cone,  i  Met.  2S3.      "The  dis- 
tinction," says  Chief  Justice   Shaw,    in    Lamb    v.    Crafts,    12 
Met.  353,  "we  believe  is  now  well   understood.      When  ;i  per- 
son stipulates  for  the  future  sale  of  articles,   which  he  is  habit- 
ually making,  and  which,  at  the  t  ne,  are  not  made  or  finished, 
it  is  essentially  a  contract  of  sale,  and  not  a  contract  for  labor; 
otherwise,  when  the  article  is  made  pursuant  to  the  agreement." 
In  Gardner  v.  Joy,  9  Met.    177,   a   contract   to   buy   a   certain 
number  of  boxes  of  candles  at  a  fixed   rate   per   pound,    which 
the  vendor  said  'he    would    manufacture   and   deliver   in   about 
three  months,  was  held  to  be  a  contract  of  sale  and  within  the 
statute.     To  the  same  general  effect   are  Waterman  v.  Meigs, 
4  Cush.  497,  and  Clark  v.  Nichols,  107  Mass.  547.     It  is  true 
that  in  "the  infinitely  various  shades   of   different   contracts," 
there  is  some  practical  difficulty  in  disposing   of   the   questions 
that  arise  under  that  section  of  the  statute.     General  Statutes, 
c.  105,  sec.  5.     But  we  see  no  ground  for  holding  that  there  is 
any  uncertainty  in  the  rule  itself.     On  the  contrary,  its  correct- 
ness and  justice  are  clearly  implied  or  expressly  affirmed  in  .all 
of  our  decisions  upon  the  subject-matter.     It  is  proper  to  say, 
also,  that  the  present  case  is  a  much  stronger  one   than   Mixer 
V.  Howarth.     In  this  case,  the  carriage  was  not  only  built  for 
the    defendant,    but    in    conformity   in   some  respects  with  his 
directions,  and  at  his  request  was  marked  with  his  initials.      It 
was  neitlier  intended  nor  adapted  for  the  general  market.      As 


;RS0XAI.   I'HOI'KUTV. 

reforc.  is  subject  to  the 
y  V.  Shcppartl,  lo  Hini^. 
2  1 ;  ]?al(Icv  V.  Parker,  3 
C.  277. 

g  buth  of  these  extremes 
21  Pick.  205,  and  has 
I  decisions  of  more  recent 
iiiulcrstand  to  be  this, 
articles  then  existinp^  or 
•se  of  his  business  manu- 
arket,  whether  on  hand 
sale  of  goods,  to  which 
band,  if  tiic  goods  are  to 
lurchaser,  and  upon  his 
market,  the  case  is  not 
I  Met.  283.  "Tlie  dis- 
n  Lamb  v.  Crafts,  I3 
derstood.  When  ;i  per- 
icles,  whicli  he  is  habit- 
arc  not  made  or  finished, 
lot  a  contract  for  labor; 
•suant  to  the  agreement." 
ntract  to  buy  a  certain 
rate  per  pound,  which 
re  and  deliver  in  about 
;t  of  sale  and  within  the 
ire  Waterman  v.  Meigs, 
7  Mass.  547.  It  is  true 
of  different  contracts," 
losing  of  the  questions 
itute.  General  Statutes, 
for  holding  that  there  is 
the  contrary,  its  correct- 
expressly  affirmed  in  all 
er.  It  is  proper  to  say, 
tronger  one  than  Mixer 
e  was  not  only  built  for 
1  some  respects  with  his 
ked  with  his  initials.  It 
;hc  general  market.      As 


I 


\l 


1 


(iOI)UAUl)    V.    IIINNKV. 


377 


we  are  bv  no  means  prepared  to  overrule  the  decision  m  that 
case,  we'must  therefore  hold  that  the  statute  of  frauds  <loes  not 
apply  to  the  contract  which  the  plaintiff  is   seeking  to  enforce 

in  this  action. 

Independently  of  that  statute,  and   in  cases  to  which  it  does 
not  apply,  it  is  well  settled  that  as  between  tlie  immediate  par- 
ties, propertv  in  personal  chattels  may  pass  by  bargain  and  sale 
without  actual  deliverv.     If  the  parties  have   agreed  upon  the 
specific  thing  that  is  sold  and  the  price  that  the  buyer  is  to  pay 
for  it.  and  nothing  remains  to  be  done  but  that  the  buyer  should 
pay  the  price  and  take  the  same  thing,    the    property  passes  to 
thJ  Inner,  and  with  it  the  risk  of  loss  by  fire  or  any  other  acci- 
dent   "  The  appropriation  of  the  chattel  to  the  buyer  is  e.iuiva- 
lent.  for  that  purpose,  to  delivery  by  the  seller.     The  assent  ot 
the  buyer  to  take  the  specific  chattel  is  equivalent  for  the  same 
purpose   to   his   acceptance   of   possession.      Dixon  v.  ^  ates.  3 
H    c'v  Ad.  313,  340.     The  property  may  well  be  in  the  buyer, 
thou-h  the  right  of  possession,  or   lien    for   the   price,  is  m  the 
seller.      There  could   in  fact  be   no  such  lien  without  a  change 
of  ownership.     No  man  can  be  said  to  have  a  lien,  in  the  prop- 
er sense  of  the   term,   upon   hi.   own  property,  nnd  the  seller's 
lien  can  only  be  upon  the  buyer's  property.     It  has  often  been 
decided  that  assumpsit   for   the   price   of    goods  bargained  ami 
sold  can  be  maintained  where  the  goods   have  been  selected  by 
the  buver,   and    set    apart    for    him    by  the    seller,   though  not 
actuallv  delivered   to   him,    and   where   nothing  remains  to  be 
done  except  that   the   buyer  should   pay  the  agreed  price.     In 
such  a  state  of  things  the  property  vests  in  him.  and  with  it  the 
ri.k  of  any  accident  that  may  happen  to  the  goods  m  the  mean- 
time.    Noy's  Maxims,   89;    2    Kent,   Com.     [.2    Ed.]    492; 
Bloxam  v.  Sanders,  4  B-  &  C.  9^1  :  Tarling  v.  Baxter,  6  li.  .V 
C.  360;   Hinde    V.    Whitehouse,    7   East.    571;    Macomber  v. 
Parker,  13  Pick.  175,  1S3;   Morse  v.  Sherman,  106  Mass.  430. 
In  the  present  case  nothing  remained  to  be  done  on  the  part 
of  the  plaintiff.     The  price  had  been  agreed  upon  ;  the  specific 
chattel   had  been   finished    according  to   order,   set  apart  and 
appropriated  for  the  defendant,   and  marked  with  his  initials. 
The  plaintiff  had  not  undertaken  to  deliver  it  elsewhere  than 
on  his  own  premises.     He  gave  notice  that  it  was  finished,  and 
presented   his    bill    to   the   defendant,   who  promised  to  pay  it 


37^^       MODES  OF  OBTAINING  TITI.K   TO  PERSONAL  PKOl'ERTV. 

soon.  He  h;ul  previously  reiiuestcd  that  the  carriage  should 
not  be  sold,  a  request  which  substantially  is  equivalent  to  ask- 
ing the  plaintiff  to  keep  it  for  him  when  finished.  Without 
contending  that  these  circumstances  amount  U.  a  delivery  and 
acceptance  within  the  statute  of  frauds,  the  plaintiff  may  well 
claim  that  enough  has  been  done,  in  a  case  not  within  that 
statute,  to  vest  the  general  o\\  nership  in  the  defendant,  and  to 
cast  upon  him  the  risk  of  loss  by  fire,  while  the  chattel  remained 
in  the  plaintiff's  possession. 

According  to  the  terms  of  the' reservation,  the  verdict  must 
be  set  aside,  and  judgment  entered  for  the  plaintiff. 

Consult — Pitkin  v.  Noves,  4S  N.  11.  294,  97  Am.  Dec.  615;  Atwater 
V.  llovt,  29  Conn.  5(H),  79  Am.  Dec.  299;  Pawlewski  v.  llargr.ives,  47  N. 
J.  (L.)  374,  54  Am.  Rep.  i6j;  O'N'eil  v.  R.  Co.,  3  Nev.  141;  Kdvvards 
V.  R,  Co.,  48  Me.  379,54  111.  165;  Gadsden  v.  Lane,  I  McMull,  S7,  37  Am. 
Dec.  548. 


§  72.    Same— The  New  York  doctrine. 
COOKE  V.  MILLARD. 


[65  N.  V.  352;  22  Am.  Rep.  619.] 

Comiiiission  of  Appeals  of  A'cxv  York^  ^^75' 

Action  to  recover  the  price  of  certain  lumber  sold  and  deliv- 
ered. The  referee  found  that  plaintiffs  were  copartners  and 
wholesale  lumber  merchants,  and  proprietors  of  a  planing  mill,  at 
Whitehall,  New  York,  and  defendants  were  partners  and  lumber 
merchants,  at  New  Hamburgh,  on  the  Hudson.  The  course  of 
business  is,  that  the  lumber  is  shipped  from  Whitehall  by  canal 
to  Troy,  and  thence  to  New  Hamburgh  by  the  Hudson  river. 
On  the  fifth  day  of  September,  1S65,  the  defendants,  desiring  to 
purchase  certain  kinds  of  lumber,  were  shown  by  the  plaintiff 
the  lumber  then  in  their  yard  at  WHiitehall.  This  was  of  the 
desired  quality,  but  needed  to  be  dressed  and  cut  into  the  differ- 
ent sizes  which  they  wished.  There  was  much  more  lumber  in 
the  yard  shown  to  the  defendants  than  was  requisite  for  their 
purposes.  The  defendants  thereupon  orally  gave  to  the  plain- 
tiffs an  order  for  certain  quantities  and  sizes  of  lumber,  at  spec- 


ERSONAL  rUOl'ERTY. 

hat  the  carriage  should 
Uy  is  c(iiiivak-iit  to  ask- 
•hcn  Hiiishcd.  Without 
nount  t  I  a  deli\ery  and 
,  the  plaintiff  may  well 
a  case  not  within  that 
n  the  defendant,  and  to 
,  hile  the  chattel  remained 

[ition,    the   verdict   must 
the  plaintiff. 

97  Am.  Dec.   615;  Atwater 

rtlewski  V.  Margraves,  47  N. 

Co..  3  Nev.  141;   Edwards 

Lane,  I  McMuU,  {57,  37  Am. 


me. 
\RD. 

;p.  619.] 

1  lumher  sold  and  deliv- 
ffs  were  copartners  and 
etors  of  a  planinj]^  mill,  at 
.^ere  partners  and  lumber 
Hudson.  The  course  of 
rom  Whitehall  by  canal 

1  by  the  Hudson  river, 
e  defendants,  desiring  to 

2  shown  by  the  plaintiff 
hall.  This  was  of  the 
d  and  cut  into  the  differ- 
as  much  more  lumber  in 
1  was  requisite  for  their 
)rally  gave  to  the  plain- 
sizes  of  lumber,  atspec- 


COOKK    V.    MIM.AIin. 


379 


ificd  prices,  amounting  in  the  whole  to  $918.33.      A  memoran- 
dum of  the  order  so  agreed  to   was  made  by  the  plaintiffs,   but 
was    not    subscribed    by    any    one.     No  particular  lumber  was 
selected  or   set  apart   to   lill  the  order,  nor  was  any  part  ot  it 
then  in  condition  to  be  accepted  or  delivered.      The  defendants 
told  the  plaintiffs  that  I'ercival,  a  forwarder  at  Whitehall,  woul.l 
send  a  boat  to  take  the  lumber,  when  notified  that  it  was  ready 
to  be  delivered.     Tercival,   during  the  same  season,  and  prior 
to  September  5,  had   taken  up   a  boat  for  the  defenda'its,   and 
shipped  a  part  of  a  load  of  lumber  from  the  plamtiffs'  dock, 
making  up  the  residue  from  his  own  yard.      He  had  fre<iuently 
shipped  lumber  for  the  defendants.      Hy  the  course  of  tra.le,   a 
boat  could  not  be  obtained  to  carry  a  part  of  a  load  of  lumber 
from   Whitehall  to  New  Hamburgh,  except  for  the  price  ot  a 
full  load.     To  avoid  paying  such  full  price,  arrangements  ha.l 
to  be  made  to  fill  out  the  load.      The   defendants  knew  ot  this 
^vhen  thev  made  the  order  of   September   5.     The  order  only 
amounted  to  one  half  boat  load.     Pcrcival   then  had  a  pile  ot 
lumber  (seventeen  thousand,   six  hundred  and  seventy-one  feet 
of   culls)   to    ship   to  the  defendants,   which  was  no  part  of  the 
lumber  to  be  dressed  by    plaintiffs.      The  lumber    ordered  on 
September  5  was  to  be  taken  from  the  lots  examined  by  the  de- 
fendants, and  the  lumher  dressed  and  piled  on  the  plaintiff's 
dock,  was  all  taken    from    the   lumber   shown.      After  the  oral 
order  defendants  went  into  the  lumber  yard  with  the  plaintiffs 
foreman,  Martin,  and  pointed  out  to  him  some  of  the  piles  horn 
which  they  desired  the  lumber  to  be  mimufaclured.  and  directe.l 
plaintiffs  to  put  the  lumber,  when  ready,  on  plaintiffs  dock  and 
to  notify  Percival ;   and  told  plaintiffs  that  when  this  was  done, 
I'ercival.  who  was  also  a  lumber  dealer,  wouhl  take  up  a  boat 
•md  ship  the  lumber,  and  make  out  the  load  from  his  yard.   Sub- 
sequentlv,  the  fifteenth  of  September,  the  lumber  having  been 
prepared  and  dressed,  according  to  the  oral  agreement,   it  was 
piled  upon  the  dock  of  the  plaintiffs  at  Whitehall,  along  the  trout 
of   the  planing  mill,    and  was,  on  the  sixteenth  of  that  month, 
measured  by  plaintiffs,  and  was  in  all  respects  ready  for  deliv- 
ery by  them,  according  to  the  oral  agreement. 

The  plaintiffs,  on  the  same  day,  gave  notice  to  Percival  that 
the  lumber  was  ready  for  delivery,  and  requested  him  to  send  a 
boat  and  take  it  away.     Percival  had  not  been  notified  that  he 


3S0       MODKS  OK   OIlTAIMNc;    11  I  I.IC   TO   I'K  I!  SONA  I.   I'ltOl'ICU  IV. 


\vas  lo  sliiptlie  lumber,  and  paid  no  attention  to  the  notice  ji^ivei 
liim  hy  plaintiffs.  On  tiie  otlier  liand.  tlie  plaintiffs  ditl  no 
asccrt-iin  tliat  iV-rcival  did  not  know  of  tiic  arranjjemcnt,  whicl 
the  defendants  iiad  told  tiieni  they  would  maki;  with  Percival  ai 
to  shipping;  tile  Inmlier,  until  after  tlie  fire  hereinafter  men 
tioncd.  On  the  next  day,  Sunday,  the  luinlier  bein^  still  on  tin 
<lock,  as  it  was  at  the  time  Percival  was  notitied,  was  coiisuiiuh 
by  an  accidental  tiic,  with  the  planinj;;  mill  and  much  otliei 
property. 

Judgment  for  defendant 

DwKiiiT,  C. — No  exceptions  were  taken  in  this  cause,  cxccp 
to  the  conclusions  of  law  derived  by  tiic  referee  from  tiie  fact* 
as  found  in  the  report.  There  are  but  two  questions  to  be  coiv 
sidered :  One  is,  whether  the  contract  is  within  the  statute  ol 
frauds;  the  other  is,  if  it  be  held  that  it  is  within  the  statute 
were  the  acts  done  by  the  parties  sufHcient  to  comply  vvitli  it' 
terms,  so  as  to  make  the  contract  enforceable  in  a  court  of  jus' 
tice? 

In  order  to  determine  whether  the  contract  is  svithin  the  stat- 
ute, it  is  important  briefly  to  state  the  exact  acts  which  the 
plaintiffs  were  to  perform. 

The  contract  was  plainly  executory  in  its  nature.  There  wert 
no  specific  articles  upon  which  the  minds  of  the  buyer  and  sellei 
met.  so  that  it  could  be  aftirmed  that  a  title  passed  a.t  the  time 
of  the  contract.  The  seller  was  to  select,  from  the  mass  of  lum- 
ber in  his  yard,  certain  portions  that  would  comply  with  the 
buyer's  order.  The  purposes  of  the  parties  could  not  even  be 
accomplished  by  the  process  of  selection.  The  lumber  must  be 
put  in  a  condition  to  answer  the  order.  It  must  be  dressed  and 
cut  into  required  sizes.  The  contract  called  for  distinct  parcels 
of  surface  pine  boards,  clapboards,  and  matched  ceiling.  Part 
of  the  lumber  was  surfaced,  and  a  portion  of  it  still  in  the  rouo-li. 
The  clapboards  were  manufactured  from  stuff  one  and  a  quar- 
ter inch  thick.  It  had  to  be  split,  surfaced,  and  rabbeted.  The 
order  for  the  various  items  was  a  single  one,  there  being  fifteen 
thousand,  four  hundred  and  forty-one  feet  of  the  surface  pine, 
ten  thousand,  one  hundred  and  forty-four  feet  of  clapboards,  and 
eight  thousand  feet  of  matched  ceiling.  The  surface  boards 
and  the  ceiling  were  in  existence,  and  only  needed  dressing  to 


■KiisoNAi.  i'itofi;i{  rv. 

tcntionto  the  notice  givi'ii 
lul,  tlie  plaiiitit't's  did  not 
if  the  airan<;fnicnt,  wliii  ii 
lid  mal<i;  witli  Pc-rcival  as 
tiiL'  till'  hereinafter  nien- 
;  luniiier  bein^  still  on  the 
:is  notified,  was  consumed 
injf  mill  and   much  other 

Judfrment  for  defendant. 

akeii  in  this  cause,  except 
tile  referee  from  the  facts 
:  two  questions  to  he  con- 
ct  is  within  the  statute  of 
It  It  is  within  the  statute. 
(Kcient  to  comply  with  its 
•rccable  in  a  court  of  jus- 

ontract  is  svithin  the  stat- 
thc  exact  acts  which  the 

n  its  nature.  There  were 
ids  of  the  buyer  and  seller 

a  title  passed  at  the  time 
:t,  from  the  mass  of  lum- 
t  would  comply  with  the 
parties  could  not  even  be 
on.  The  lumber  must  be 
It  must  be  dressed  and 
called  for  distinct  parcels 
d  matched  ceiling.  Part 
ion  of  it  still  in  the  rough, 
■om  stuff  one  and  a  quar- 
aced,  and  rabbeted.  The 
e  one,  there  being  fifteen 

feet  of  the  surface  pine, 
ur  feet  of  clapboards,  and 
g.  The  surface  boards 
1  only  needed  dressing  to 


r> 


COOKt:    V.   MII.I.AHD. 


3S' 


comply  with  the  order.  Whether  the  clapboards  c;m  IkmUviiu-.I 
to  have  been  in  existence  may  be  more  doubtful.      If   a   part  of 
tiie  order  is  within   the   statute   of   frauds,   and  a  portion  of   it 
without  it.  the  whole  transiction  must  be  deemed  to  l)e  within 
it,  as  an  entire  contract  can  not.  in  this  case,  be  divided  or  ap- 
portioned.  Cooke  V.  Toml)s,   2  Anst.  420;   Chaper  v.  i?eckott, 
~  T.  U.  .'oi  ;  Mechelen  v.  Wallace,  7  A.  i^  1^.   19!    Thomas  v. 
Williams,  10  n.  ik  C.  66|;   Loomis  v.  Newhall,  1=;  Pick.    139- 
1  think  it  clear  that  the  contract  was  in  its  nature  entire.    It  was 
in  evidence  that  the  ii\teni:on  was  to  buy  enough,  in  connection 
wltli  what  Percival  had  on  h  -nd,  to  make  up  a  l)oat  load.   This 
could  only  be  accomplished  by  using  the  entire  amount  of  the 
order.      Accordingly,  even   if    the  contract  for  the  clapboaids 
was   not  a   sale,    it  can   not  be   separated   fiom  the  rest  of  the 
order,  and  the  cases  above  cited  are  applicable. 

The  (luestion  is  thus  reduced  to  the  following  proposition:  Is 
a  contract  which  is,  in  form,  one  of  sale  of  lumber  then  hi  ex- 
istence for  a  fixed  price,  where  the  seller  agrees  to  put  it  into  a 
state  of  lltncss  to  (ill  the  order  of  the  purchaser,  his  work  being 
included  in  the  price,  in  fact,  a  contract  for  work  and  labor  and 
not  one   of  sale,    and    accordingly   not   within  the    statute    of 

frauds? 

The  New  York  statute  is  made  applicable  to  the  "sale  of  any 
goods,  chattels,  or  things  in  action,"  for  the  price  of  $50  or 
more.  The  words  "goods  and  chattels"  are,  literally  taken, 
probably  more  comprehensive  than  the  expressions  in  the  Eng- 
lish statute,  "goods,  wares,  and  merchandise."  It  will  be 
assumed,  however,  in  this  discussion,  that  they  are  equivalent. 
There  are  at  least  three  distinct  views  as  to  the  meaning  of 
the  words  in  the  statute.  These  may  be  called,  for  the  sake  of 
convenience,  the  English,  the  Massachusetts,  and  the  New  York 
rules,  as  representing  the  decisions  in  the  respective  courts. 

The  English  rule  lays  especial  stress  upon  the  point,  whether 
the  articles  bargained  for  can  be  regarded  as  goods  capable  of 
sale  by  the  professed  seller  at  the  time  of  delivery,  without  any 
reference  to  the  inquiry  whether  they  were  in  existence  at  the 
time  of  the  contract  or  not.  If  a  manufacturer  is  to  produce  an 
article  which  at  the  time  of  the  delivery  could  be  the  subject  of 
sale  by  him,  the  case  is  within  the  statute  of  frauds.  The  rule 
excludes  all   cases  where  work  is  done  upon  the  goods  of  an- 


3^^      MDDKS  111    (i|!T.\I\l\(;   Tirt.K    It)  1M;US()\AI.  I'IIOPKHTY, 


other,  or  even  materials  siij^plied  or  acMud  to  the  <'ooils  of 
another.  Thus  it'  a  larriaj^e  iiiakir  shoiihl  repair  my  carriatfe, 
liotli  fiirnisliint,'  hilior  ami  supplyiiiLC  materials,  it  would  he  a 
contract  for  worii  and  hil)or,  as  ilie  vviiole  result  of  his  efforts 
would  not  produce  a  chattel  which  could  he  the  subject  of  sale 
hy  him.  If  on  tiie  other  hand,  hy  the  contract  he  lays  out  work 
or  materials,  or  both,  so  as  to  proiUice  a  chattel  which  he  could 
sell  to  me,  the  contract  is  within  the  statute.  This  conclusion 
has  been  reached  only  after  f^reat  discussion  and  much  Huctua- 
tion  of  opinion,  but  must  now  be  rejjarded  as  settled.  The 
leatliii}^  case  upon  this  point  is  Lee  \ .  (jritFin,  i  Mest  tS:  Smith, 
J72;  iJenj.  .Sales,  77.  The  action  was  there  broujjjht  by  a  den- 
tist to  recover  jQ2\  sterlinjj  for  two  sets  of  artificial  teeth,  made 
for  a  deceased  lady  of  whose  estate  the  defendant  was  executor. 
The  court  held  tliis  to  be  the  sale  of  a  chattel  within  the  statute 
of  frauils.  Hlackburn,  J.,  stated  the  principle  of  the  decision 
in  a  clear  maimer:  "If  the  contract  be  sucli  that  it  will  result  in 
the  sale  of  a  chattel,  then  it  constitutes  a  sale,  but  if  the  work 
and  labor  be  bestowed  in  such  a  manner  as  that  the  result  would 
not  be  anythiiif^  which  could  properly  be  said  to  be  the  subject 
of  sale,  the  action  is  for  work  and  labor." 

The  Massachusetts  rule,  as  applicable  to  <^oods  manufactured 
or  modified  after  the  barjjain  for  them  is  made,  mainly  retjards 
the  point  whether  the  products  can,  at  the  time  stipulated  for 
delivery,  be  re<jarded  as  "goods,  wares,  and  merchandise,"  in 
the  sense  ot  being  generally  marketable  commodities  made  by 
the  manufacturer.  In  that  respect  it  agrees  with  the  English 
rule.  The  test  is  not  the  nonexistence  of  the  commodity  at  the 
time  of  the  bargain.  It  is  rather  whether  the  manufacturer  pro- 
duces the  article  in  the  general  course  of  his  business,  or  as  the 
result  of  a  special  order.  Goddard  v.  Binney,  115  Mass.  450, 
i^  Am.  Rep.  112.  In  this  very  recent  case,  the  result  of  their 
decisions  is  stated  in  the  following  terms:  "A  contract  for  the 
sale  of  articles  then  existing,  or  such  as  the  vendor  in  the  ordi- 
narv  course  of  his  business  manufactures  or  procures  for  the 
general  market,  whether  on  hand  at  the  time  or  not,  is  a  con- 
tract for  the  sale  of  goods  to  which  the  statute  applies.  But  on 
the  other  hand,  if  the  goods  are  to  be  manufactured  especially 
for  the  purchaser  and  upon  his  special  order,  and  not  for  the 
general  market,  the  case  is  not  within  the  statute."     Under  this 


Kil.sovAi.  i'ii()i'i:u  IV. 

ntKlcd  to  tlif  j'Doils  of 
oiild  repair  my  carriaj^e, 
materials,  it  woiiUl  lie  a 
vliole  result  of  liis  efforts 
il<!  he  the  Huhject  of  sale 
contract  he  lays  out  work 
a  chattel  which  he  could 
atnte.  'Phis  couclu.siou 
u.ssion  and  much  lUictua- 
2jxarded  as  settled.  The 
[irltFiii,  1  Mest  i*t  Smith, 
i  there  brou<j;ht  by  a  deii- 
s  of  artificial  teeth,  made 
defendant  was  executor, 
chattel  within  the  statute 
principle  of  the  decision 
sucii  that  it  will  result  in 
s  a  sale,  hut  if  the  work 
!r  as  that  the  result  would 
be  said  to  be  the  subject 
)r." 

le  to  "joods  manufactured 
is  made,  mainly  re<!;ards 
it  the  time  stipulated  for 
s,  and  merchandise,"   in 
le  commodities  made  by 
ajijrets  with  the  English 
of  the  commodity  at  the 
er  the  manufacturer  pro- 
of his  business,  or  as  the 
IJinney,  115  Mass.  450, 
It  case,  the  result  of  their 
ms:    "A  contract  for  the 
s  the  vendor  in  the  ordi- 
:tures  or  procures  for  the 
the  time  or  not,  is  a  con- 
:  statute  applies.     But  on 
I  manufactured  especially 
ial  order,  and  not  for  the 
the  statute."     Under  this 


COOKK    V.   MII.I.AUn. 


383 


rule  it  was  held  in  fianlner  v.  Joy,  9  Mete.  177,  that  a  contract 
to  buy  a  certain  number  of  l)o\es  of  candles  at  a  fixed  price  piT 
l.ound.  wliich  the  vendor  said  he  would  manufacture  and  (K  li\er 
in  a!)out  three  montiis,  was  held  to  be  a  contract  of  sale.  i)\\ 
the  other  li:in<l.  in  (Joddard  v.  niniicy.  supra,  the  contract  with 
a  carriage  manufacturer  was  that  he  should  make  a  buggy  for 
tlie  person  ordering  it,  that  the  color  of  the  lining  should  be 
drab,  and  the  outside  seat  of  cane,  and  have  on  it  the  monogiain 
and  initials  of  the  party  for  whom  it  w  .s  made.  This  was  held 
not  to  be  a  contract  of  sale  within  the  statute.  See,  also,  Mixer 
V.  Ilowarth,  ii  Tick.  Jos,  ?,i  Am.  Dec.  JS<J;  Lamb  v.  Crafts, 
12  Mete.  353;   Spencer  v.  Cone,  i  Id.  2S3. 

The  New  York  rule  is  still  different.      It    is   held    here  by   a 
long  course  of   decisions  that  an  agreement  for  the  sale  of  any 
commodity  not  in  existence  at  the  time,  but  which  the  vendor  is 
to   maiuifacture   or  put  in  a  condition  to  be  delivered,  such  as 
Hour  from  wheat  not  yet  ground,  or  nails  to  be  made  from  iron 
belonging  to  the  manufacturer,  is  not  a  contract  of  sale.     The 
New  York  rule  lays  stress   on  the  word  "sale."     There   must 
be  a  sale  at  the  time  the  contract  is  made.     The  latest  and  most 
authoritative  expression  of  the  rule  is  found  in  a  recent  case   in 
this  court.     Parsons  v.  Loucks,  .jS  N.  Y.  17,  19,  S  Am.   Kep. 
517.    The  contrast  between  Parsons  v.  Loucks,  in  this  state,  on 
the  one   hand,   and  Lee  v.  GrilHn,  supra,  in  England,  on  the 
other,  is  that  in  the  former  case  the  word  sale  refers  to  the  lime 
of  entering  into  the  conliact,  while  in  the  latter,  reference  is  had 
to  the  time  of  delivery,  as  contemplated  by  the   parties.      If  at 
that  time  it  is  a  chattel   it   is  enough,   according  to  the  English 
rule.    Other  cases  in  this  state  agreeing  with  Parsons  v.  Loucks 
are  Crookshank  v.  Uurrel,  iS  Johns.  58,  9  Am.  Dec.  1S7;  Sew- 
all  v.  Fitch,  8  Cow.    215;   Robertson  v.   Vaughn,  5  Sandf.    i  ; 
Parker  v.  Schenck,   28  Harb.  38.      These   cases    are   based  on 
certain  old  decisions  in  England,  such  as  Towers  v.  Osborne,  i 
Strange,  506,  and  Clayton  v.  Andrews,  4  Burr.  2101,  which  have 
been  wholly  discarded  in  that  country. 

The  case  at  bar  does  not  fall  within  the  rule  in  Parsons  v. 
Loucks.  The  facts  of  that  case  were  that  a  manufacturer 
agreed  to  make  for  the  other  parly  to  the  contract  two  tons  of 
book  paper.  The  paper  was  not  in  exiilence,  and  so  far  as 
appears,  not  even  the  rags,  "except  so  far    as    such    existence 


3S4       MODES  OF  OBTAIXIXG   TITLE  TO  PEHSOXAL  PUOPERTY. 


may  be  argued  from  the  fact  that  matter  is  indestructible." 
ill  Sewall  v.  Fitch,  supra,  the  nails  which  were  the   subject 
the  contract  were  not  then  wrought  out,  but  were  to  be  ma 
and  delivered  at  a  future  day. 

Nothing  of  this  kind  is  found  in  the  present  case.  The  lu 
bcr,  with  the  possible  exception  of  the  clapboards,  was  all 
existence  when  the  contract  was  made.  It  only  needed  to 
prepared  for  the  purchaser — dressed  and  put  in  a  condition 
fill  his  order.  The  court  accordingly  is  not  hampered  in 
disposition  of  this  cause  by  authority,  but  may  proceed  up 
principle. 

Were  this  sulijcct  now  open  to  full  discussion  upon  princi 
no  more  convenient  and  easily  understood  rule  could  be  adop 
than  that  enunciated  in  Lee  v.  GritVin.  It  is  at  once  so  pi 
osophical  and  so  readily  comprehensible,  that  it  is  a  matter 
surprise  that  it  should  have  been  tirst  announced  at  so  lati 
stage  in  the  discussion  of  the  statute.  It  is  too  late  to  adop 
in  full  in  this  state.  So  far  as  authoritative  decisions  h; 
gone  they  must  be  respected,  even  at  the  expense  of  soi 
principle.  The  court,  however,  in  view  of  the  present  statt 
the  law,  should  plant  itself,  so  far  as  it  is  not  precluded  fr 
doing  so  by  authority,  upon  some  clearly  intelligible  grou: 
and  introduce  no  more  nice  and  perplexing  distinctions, 
think  that  the  true  rule  to  be  applied  in  this  state,  is  that  wl 
the  chattel  is  in  existence,  so  as  not  to  be  gove.ned  by  Pars 
V.  Loucks,  supra,  the  contract  should  be  deemed  to  be  one 
sale,  even  though  it  may  have  been  ordered  from  a  seller  v 
is  to  do  some  work  upon  it  to  adapt  it  to  the  uses  of  the  j: 
chaser.  Such  a  rule  makes  but  a  single  distinction,  and  th;i 
between  existing  and  nonexisting  chattels.  There  will  still 
border  cases  where  it  will  be  ditlicult  to  draw  the  line,  and 
discover  whether  the  chattels  are  in  existence  or  not. 
mass  of  the  cases  will,  however,  readily  be  classified.  If, 
further  discussion,  the  rule  in  Lee  v.  Griffin  should  be  foi 
most  desirable  as  applicable  to  both  kinds  of  transaction 
proper  case  will  be  presented  for  the  consideration  of  the  le 
lature. 

The  view  that  this  case  is  one  of  sale  is  sustained  by  Sr 
V.  Central  R.  Co.,  4  Keyes,  iSo,  and  by  Downs  v.  Ross 
Wend.  270. 


0  PEUSONAL  PROPERTY. 

latter  is  iiulcstmctiblc."  So 
which  were  tlie  subject  of 
out,  but  were  to  be  made 

he  present  case.  The  lum- 
the  clapboards,  was  all  in 
ide.      It  only  needed  to  be 

1  and  put  in  a  condition  to 
^ly  is  not  hampered  in  the 
rity,  but  may  proceed  upon 

11  discussion  upon  principle 
irstood  rule  could  be  adopted 
fin.  It  is  at  once  so  phil- 
sible,  that  it  is  a  matter  of 
irst  announced  at  so  late  a 
2.  It  is  too  late  to  adopt  it 
uthoritative  decisions  have 
n  at  the  expense  of  soi  nd 
view  of  the  present  state  cf 
IS  it  is  not  precluded  from, 
clearly   intelligible   ground, 

perplexing  distinctions.  I 
:d  in  this  state,  is  that  when 
:  to  be  govo.ned  by  Parsons 
Id  be  deemed  to  be  one  of 
,  ordered  from  a  seller  who 
t  it  to  the  uses  of  the  pur- 
iingle  distinction,  and  that  is 
;hattels.  There  will  still  be 
lit  to  draw  the  line,   and  to 

in  existence  or  not.  The 
eadily  be  classified.  If,  on 
V.  Griffin  should  be  found 
oth  kinds  of  transactions,  a 
he  consideration  of  the  legis- 

f  sale   is   sustained  by  Smith 
and   by   Downs  v.  Ross,  25 


COOKE    V.    MII.I.ARn. 


3S5 


In  the  first  of  these  cases  there   was   a   contract  for  the  sale 
and  delivery  of  a  quantity  of  wood,  to  be  cut  from  trees  stand- 
ing on  the  plaintiff's  land.       The  court  held  that  it  could  nni  In; 
treated  as  an  agreement  for  work  and  labor  in  manufacturing 
fire-wood  out  of  standing  trees.     The  cases  already  cited  were 
distinguished  in  the  fact  that  no  cliangc  in  the  thing  sold  and  to 
be  delivered  was  contemplated,  and  that  the  transaction  could 
be  regarded   as   a   sale   in   perfect   consistency   with   the    cases 
which  hold  that  where  the  substance  of  the  contract  consists  in 
the  act  of  converting  materials   into  a  new  and  wholly  different 
article,  it  is  an  agreement  for  work  and  labor.     It  was  further 
considered  that  the  case  of  Towers  v.  Osliorne,  i  Strange,  506, 
where  an  agreement  for  the   manufacture   of   a   chariot  was  a 
contract  for  work  and  labor,  was  extreme  in  its  nature,  and  was 
not  to  be  carried  any  further.     Page  200.      The  cases  of  Gar- 
butt  v.  Watson,  5  B.  &  Aid.  613,  and  Smith  v.   Surman,  y  B. 
&  C.  561,  were  cited  with  approval.     In  Garbutt  v.  Watson,  a 
sale  of  flour  by  a  miller  was  held  within  the  statute,   although 
not  ground  when  the  bargain  was  made. 

In  Downs  v.  Ross  there  was  a  contract  for  the  sale  of  seven 
hundred  and  fifty  bushels  of  wheat,  two  hundred  and  fifty  of 
the  quantity  being   in    a   granary,    and   the  residue  unthreshcd, 
out  which  the  vendor  agreed  to  get   ready    and   deliver.     The 
court  held  the  contract  to  be  within  the  statute  of  frauds,  not- 
withstanding that  the  act  of  threshing  was  to   be   done  by  the 
vendor.     The  rule  that  governed  tire  court  was  that  if  the  thing 
sold  exist  at  the  time  in  solido,    the    mere   fact   that   oometliing 
remains  to  be  done  to  put  it  in  a  marketable  condition  will  not 
take  the  contract  out  of  the  operation  of  the  statute.     Page  272. 
This  proposition  is  in  marked  contrast  to  the   view   expressed 
by  Cowen,  J.,    in   a  dissenting  opinion,     liis  theory  was  that 
where  the  article  which  forms  the  subject  of  sale  is  understood 
by  the  pa'      s  to  be  defective  in  any  particular  which  demands 
the  finishing  labor  of  the  vendor  in  order  to  satisfy  the  bargain, 
it  is  a  contract  for  work  and  labor,  and  not  of  sale.     The  two 
theories    (where    the    goods    exist    at    the    time  of  sale)  have 
nowhere   been  more   tersely   and  distinctly  stated  than   in  the 
conflicting  opinions  of  Bronson  and  Cowen,   JJ.,   in   this  case. 
See,  also,  Courtright  v.  Stewart,  19  Barb.  455. 
2S 


3S6      MODES  OF  OIITAIXING  TITI.E  TO   PERSONAL  PROPERTY. 

The  fallacy  in  the  proposition  of  Cowen,  J.,  is  in  assuming 
that  tlicic  is  any  "work  and  labor"  done  for  the  vendee.  AU 
the  work  and  labor  is  done  on  the  vendor's  property  to  put  it 
in  a  condition  to  enable  him  to  sell  it.  His  compensation  for 
it  is  found  in  the  price  of  the  goods  sold.  It  is  a  jui^gle  ot" 
words  to  call  this  "a  mixed  contract  of  fale  and  work  and 
labor."  When  the  goods  leave  the  vendor's  hands  and  pass 
over  to  the  vendee  they  pass  as  chattels  under  an  executed  con- 
tract of  sale.  While  anything  remained  to  be  done  the  contract 
was  executory.  There  is  abundance  of  authority  for  maintain- 
ing that  a  contract  in  its  origin  executory  may,  by  the  perform- 
ance of  acts  under  its  terms,  by  one  of  the  parties,  become  in 
the  end  executed.  Rohde  v.  Thwaites,  6  13.  &  C.  3SS ;  Benj. 
Sales,  chap.  5,  and  cases  cited. 

The  case  of  Donovan  v.  Willson,  26  Rarb.  138,  and  Parker 
V.  Schcnck,  28  Id.  38,  arc  to  be  upheld  as  falling  within  the 
principle  of  Parsons  v.  Loucks,  supra.  Both  of  these  cases 
concerned  articles  not  in  existence,  but  to  be  produced  by  the 
manufacturer;  in  the  one  case  beer  was  to  be  manufactured, 
and  in  the  other  a  brass  pump.  So  in  Passaic  Mfg.  Co.  v. 
Hoffman,  3  Daly,  4^5,  the  contract  was  for  the  manufacture 
and  delivery  of  fifty  warps.  None  of  these  were  in  existence 
-vhen  the  order  was  received.  While  the  case  appears  to  fall 
within  the  rule  of  Parsons  v.  Loucks,  the  eminent  judge  who 
wrote  an  elaborate  opinion  expressing  the  views  of  the  court 
would  seem  to  rely  upon  the  Massachusetts  rule  rather  than  our 
own.  Whatever  view  might  be  entertained  of  the  soundness 
of  tliat  distinction  it  is  now  too  late  to  adopt  it  here,  and  the 
case  can  not  be  sustained  on  that  ground. 

The  only  case  in  our  reports  appearing  to  stand  in  the  way 
of  the  conclusion  arrived  at  in  this  cause  is  Mead  v.  Case,  33 
Barb.  202.  The  court  in  that  case  recognized  the  distinction 
herein  upheld.  The  only  doubt  about  the  case  is  whether  the 
court  correctly  applied  the  rule  to  the  facts.  These  were  that 
several  pieces  of  marble  put  together  in  the  form  of  a  monu- 
ment were  standing  in  the  yard  of  a  marble-cutter.  That  per- 
son agreed  with  a  buyer  to  polish,  letter,  and  finish  the  article 
as  a  monument,  and  to  dispose  of  it  for  an  entire  price — $200. 
The  court  held  that  there  was  no  monument  in  existence  at  the 


:RS0NAL  rROPERTY. 

kcn,  J.,  is  in  assuming 
e  for  the  vendee.  AH 
or's  property  to  put  it 
His  compensation  for 
Did.  It  is  a  ju;j;gle  ot 
of  fale  and  work  and 
ndor's  hands  and  pass 
under  an  executed  con- 
J  to  be  done  the  contract 

authority  for  maintain- 
■y  may,  by  the  perform- 

the  parties,  become  in 
,  6  13.  &  C.  3SS;   Benj. 

Barb.  13S,  and  Parker 
Id  as  falling  within  the 
I.     Both  of  these  cases 

to  be  produced  by  the 
as  to  be  manufactured, 
n  Passaic  Mfg.  Co.  v. 
as  for  the  manufacture 
:hese  were  in  existence 
the  case  appears  to  fall 
the  eminent  judge  who 

the  views  of  the  court 
setts  rule  rather  than  our 
ained  of  the  soundness 
adopt  it  here,  and  the 
id. 

ng  to  stand  in  the  way 
ise  is  Mead  v.  Case,  33 
Ecognized  the  distinction 
the  case  is  whether  the 
facts.  These  were  that 
in  the  form  of  a  monu- 
arble-cutter.  That  per- 
er,  and  finish  the  article 
)r  an  entire  price — $200. 
iment  in  existence  at  the 


COOKK    V.    Mil. LAUD. 


,V^7 


time  of  the  bargain.     There  were  pieces  of  stone  in  the  simili- 
tude of  a  monument,  and  that  was  all. 

It  is  unnecessary  to  quarrel  with  this  case.     If  unsound,  it  is 
only   a   case   of   a  misapplication    of    an    established  rule.      If 
sound,  it  is  a  so-called  "border  case,"  showing  tlic  rclinemenls 
which  arc  likely  to  arise  in  applying  to  various  transactions  the 
rule  adopted   in   Sewall    v.    Fitch,    and    kindred    casus.      It   is 
proper,  however,  to  say  that  the  notion    that   such  an  arrange- 
ment of  marble  placed  in  a  cemetery  over  a  grave    can  not   l)e 
regarded  as  a  monument,    in    the    absence    of    an   inscription, 
seems  highly  strained.     Then  there   could   not  be   a  memorial 
church  without  an  inscription.     Then   it  could   not  iiave  been 
said  of  Sir  Christopher  Wren,  in  his  relation  to  one  of  his  great 
architectural   productions,    "Si   quiuris   monumentum,   circum- 
spice."     It  would  seem  to  be  enough  if  the  monument  reminds 
the  passer-by  of  him  whom  it  is  intended  to  commemorate,  and 
this  might  l^e  by  tradition,  inscriptions  on   adjoining   or  neigh- 
boring objects,  or  otherwise. 

In  the  view  of  these  principles,  the  defendants   had  the  right 
to  set  up  the  statute  of  frauds.      I  think  that  this  was  so  even  as 
to  the  clapboards.     Although  not  strictly  in  existence  as  clap- 
boards, they  fall  within   the   rule    in  Smith  v.   Central   K.  Co. 
They  were  no  more  new    products   than   was  the  wood  in  that 
case^     There  was  simply  to  be  gone  through  with  a  process  of 
dividing  and  adapting  existing  materials  to  the  plaintiffs'  use. 
It  would  be  difficult  to  distinguish  between  splitting  planks  into 
clapboards  and  trees  into  wood.     No  especial  skill   is  required 
as  all  the  work  is  done  by  machinery  in  general  use,  and  read- 
ilv  managed  by  any  producers   of  ordinary   intelligence.      The 
case  bears  no  resemblance  to  that  of  Parsons  v.  Loucks,  where 
the  product  was  to  be   created    from    materials    in    no   respect 
existing  in  the   form   of   paper.     The   cases   would  have  been 
more  alialogous  had  the  contract  in   that   case   been    to    divide 
large  sheets  of  paper  into  small  ones,  or  to  make  packages  of 
envelopes  from  existing  paper.     In  Oilman  v.  Hill,   36  N.    li. 
311,  it  was  held  that  a  contract  for  sheep  pelts  to  be  taken  from 
sheep  was  a  contract  for  things  in  existence,   and  a  sale. 

The  next  inquiry  is,  whether  there  have  been  suthcient  acts 
done  on  the  part  of  the  buyers  to  comply  with  the  statute.  In 
order  to  properly  solve  this  question,  it  is  necessary  to  look 
more   closely    into   the   nature   of   the  contract.     As  has  been 


3SS       MODES  OF  OHTAIMNG  TITI.E  TO  I'EUSONAI.   I'KOI'KKTY. 


already  su<,'ji;cstc(K  the  contract  was  in  its  origin  executory.  It 
called  for  selection  on  the  part  of  the  sellers  from  a  mass  of 
materials.  At  the  time  of  the  bargain  tl^ere  was  no  sale. 
There  was  at  most  only  an  agreement  to  sell.  The  plaintiffs, 
however,  lay  much  stress  on  the  fact  that  after  the  oral  bargain 
and  after  the  defendants  had  inspected  the  lumber,  they  gave 
directions,  also  oral,  to  the  plaintiffs  to  place  the  lumber  after 
it  had  been  made  ready  for  delivery  upon  the  dock  and  to  give 
notice  to  I'ercival.  They  urge  that  the  subsequent  compliance 
with  these  directions  by  the  plaintiffs  satisfies  the  terms  of  the 
statute. 

It  will  be  observed  that  all  of  these  directions  were  given 
while  the  contract  was  still  wholly  executory,  and  before  any 
act  of  selection  had  been  performed  by  the  plaintiffs.  It  will 
thus  be  necessary  to  consider  whether  these  directions  are  suft'i- 
cient  to  turn  the  executory  contract  of  sale  into  an  executed 
one.  independent  of  the  statute  of  frauds,  and  afterward  to 
imiuirc  whether  there  was  any  sufficient  evidence  of  "accept- 
ance and  receipt"  of  the  goods  to  take  the  case  out  of  the  stat- 
ute. These  ijuestions  are  quite  distinct  in  their  nature  and 
governed  by  different  considerations:  (i)  If  the  contract  had 
been  for  goods  less  than  $50  in  value,  or  for  more  than  that 
amount,  and  ordered  by  the  defendants  in  writing,  it  would 
still  have  been  executory  in  its  nature,  and  would  have  passed 
no  specilic  goods.  It  would  have  been  an  agreement  to  sell 
and  not  a  sale.  The  case  would  not  have  fallen  within  such 
authorities  as  Crofoot  v.  Bennett,  2  N.  Y.  25S,  and  Kimberly 
V.  Patchin,  19  Id.  330,  75  Am.  Dec.  334.  Since  the  goods 
could  not  have  been  identified  at  all,  except  by  the  act  of  the 
seller  in  selecting  such  as  would  comply  with  the  order,  nor 
could  the  purposes  of  the  contract  have  been  performed  except 
by  the  labor  of  the  plaintiffs  in  adapting  the  goods  to  the 
defendants'  use,  the  case  falls  within  a  rule  laid  down  by  Mr. 
Blackburn  in  his  work  on  Sales  (pp.  151,  152):  "Where,  by 
the  agreement,  the  vendor  is  to  do  anything  to  the  goods  for 
the  purpose  of  putting  them  into  that  state  in  which  the  pur- 
chaser is  to  be  bound  to  accept  them,  or,  as  it  is  sometimes 
worded,  into  a  deliverable  state,  the  performance  of  these 
things  shall,  in  the  absence  of  circumstances  indicating  a  con- 
trary intention,  be  taken  to  be  a  condition  precedent  to  the 
vesting  of  the  property."     Acraman  v.  Morrice,  8  C.  B.  449; 


HSONAI.  I'KOl'KllTV. 

s  origin  executory.  It 
ellers  from  a  mass  of 
lin  tbcre  was  no  sale. 
}  sell.  The  plaintiffs, 
t  after  the  oral  bar}j;ain 
the  lumber,  they  gave 
olace  the  lumber  after 
n  the  clock  and  to  give 
subsequent  compliance 
atisfies  the  terms  of  the 

directions  were  given 
utory.    and    before  any 

the  plaintiffs.  It  will 
ese  directions  are  sufH- 
sale  into  an  executed 
uds,  and  afterward  to 
it  evidence  of  "accept- 
the  case  out  of  the  stat- 
;t  in  their  nature  and 
(i)  If  the  contract  had 
or  for  more  than  that 
3  in  writing,  it  would 
and  wouUl  have  passed 

an  agreement  to  sell 
lave  fallen  within  such 
Y.  25S,  and  Kimberly 
334.  .Since  the  goods 
■xcept  by  the  act  of  the 
ply  with  tlie  order,  nor 
been  performed  except 
)ting  the  goods  to  the 
rule  laid  down  by  Mr. 
I,  152)  :  "Where,  by 
lything  to  the  goods  for 
;ate  in  which  the  pur- 
1,  or,  as  it  is  sometimes 

performance   of   these 

tances  indicating  a  con- 

lition  precedent  to  the 

Morrice,  8  C.  B.  449; 


COOKK    V.    MM. I. Aim. 


3^9 


Gillett  V.  Hill,  2  C.  cV  M.    530;   Campbell  v.    M /rscy   Do.ks, 
14  C.  H.  (X.  S.)  412. 

Proceeding  on  the  view  that  this  was  an  executory  contract, 
it  might  still  pass  into  the   class   of  executed  sales  by  acts  "of 
subscliuent  appropriation."      In  other  words,  if  the  subseciuent 
acts  of  the  seller,  combined  with  evidence  of  intention  on  the 
part  of  the  Iniyer,  show  that  specitic  articles  have  been  set  apart 
ill  performance  of  the  contract,  there  may  be  an  executed  sale, 
and  the    property   in  the   goods   may    pass  to    the    purchaser. 
]?lackburn.  Sales,  12S;  lienj.  Sales,  chap.  5:  Fragauo  v.  Long. 
4  B.  &  C.   219;    Rohde   V.    Thwaites,  6Id.  3S8;    Aldridge   v. 
lohnscm,  7  E.  &  B.  SS5  ;   Calcutta,  etc..  Company  v.  De  Mat- 
tos,  33  L.  J.  (Q.  B.)  2i^,  in  Exch.  Cham.     This   doctrine  re- 
quires the  assent  of  both  parties,  though  it  is  held  that  it  is  not 
necessary  that  such  assent  should  be  given  liy  the  buyer  subse- 
quently to  the  appropriation  by  the  vendor.     It  is  enough  that 
the  minds  of  both  parties  acted  upon  the  subject  and  assented  to 
the  selection.     The  vendor  may  be  vested  with  an  implied  au- 
thority by  the  vendee  to  make  the  selection  and  thus  to  vest  the 
title  in  him.     Browne    v.    Hare,   3    H.   tS:  N.4S4;   s.  c,  4  Id. 
S22.      This    doctrine    would   be   applicable  to  existing  chattels 
where  a  mere  selection  from  a  mass  of  the  same  kind  was  requi- 
site.    On  the  other  hand,  if  the  goods  are  to  be  manufactured 
according  to  an  order,  it  would  seem  that  the  mind  of  the  pur- 
chaser, after  the   manufacture  was  complete,  should  act  upon 
the  question  whether  the  goods  had  complied  with  the  contract. 
See  Mucklovv  v.  Mangles,  i  Taunt.  318;   Bishop  v.  Crawshay, 
3  B.  &  C.  415;   Atkinson  v.  Bell,  S  Id.  377.     This  point  may 
lie  illustrated  by  the  case  of  a  sale  by  sample,  where   the  seller 
agrees  to  select  from  a  mass   of    products  certain    items   corre- 
sponding with  the  sample,   and  forward    them  to  a  purchaser. 
The    act   of  selection  by  the  vendor  will  not  pass  the  title,  for 
the  plain  and  satisfactory  .reason  that  the  purchaser  has  still  re- 
maining  a  right  to  determine  whether  the  selected  goods  corre- 
spond with  the  sample.     Jenner  v.  Smith,  L.  R.  4  C.  P.  270. 
In  this  case  the  plaintiff,  at  a  fair,  orally  contracted  to  sell  to  the 
defendant  two  pockets  of  hops,   and   also  two  other  pockets  to 
correspond  with  a  sample,  which  were  lying  in  a  warehouse  in 
London,  and  which  he  was  to  forward.      On  his  return  to  Lon- 
don, he  selected  two  out  of  three  pockets  which  he  had  there, 


39" 


MODES  OK  OllTAlXING  TITLK  TO  I'KUSONAI.  I'KOI'KRTV. 


and  directed  them  to  be  marked  to  "wait  tlie  Imyer's  order." 
The  buyer  did  no  act  to  show  his  acceptance  of  the  "^oods.  The 
court  held  that  the  appropriation  was  neitlier  originally  author- 
ized nor  subsequently  assented  to  by  the  buyer,  and  that  the 
property  did  not  pass  by  the  contract.  Hrett,  J.,  put  in  a  stron<j 
form  the  objection  to  the  view  that  the  bi^yer  could  have  im- 
pliedly assented  to  the  appropriation  by  the  seller.  It  was 
urged,  he  said,  "that  there  was  evidence  that  by  agreement  be- 
tween the  parties,  the  purchaser  gave  authority  to  the  seller  to 
select  two  pockets  for  him.  If  he  did  so.  he  gave  up  his  power 
to  object  to  the  weighing  and  to  the  goods  not  corresponding 
with  the  sample  ;  for  he  could  not  give  such  authority  and  re- 
serve his  right  to  object,  and  indeed  it  has  not  been  contended 
that  he  gave  up  those  rights.  That  seems  to  me  to  be  conclu- 
sive to  show  that  the  defendant  never  gave  the  plaintiff  author- 
ilv  to  make  the  selection  so  as  to  bind  him.  Under  the  circum- 
stances, therefore,  it  is  impossible  to  say  that  the  property 
passed."  Page  278.  The  same  general  principle  was  main- 
tained in  Klein  v.  Tupper,  52  N.  V.  550,  where  it  was  held 
that  the  act  of  the  vendor  putting  the  goods  in  a  state  to  be 
delivered  did  not  pass  the  tide,  so  long  as  the  acceptance  of  the 
vendee,  provided  for  under  the  terms  of  the  contract,  had  not 
been  obtained. 

The  result  is,  that  if  this  sale,  executory  as  it  was  in  its  nature, 
had  not  fallen  within  the  statute  of  frauds,  there  would  have 
been  no  sufficient  appropriation  by  the  vendor  to  pass  the  title. 
The  transaction,  &o  far  as  it  went,  was  even  at  common  law  an 
atn-eement  to  sell  and  not  an  actual  sale. 

(2)  Hut  even  if  it  be  assumed  that  this  would  have  been  an 
executed  contract  of  sale  in  its  own  nature,  without  reference  to 
the  statute  of  frauds,  was  there  "an  acceptance  and  a  receipt" 
of  the  goods,  or  a  part  of  them  by  the  buyer,  so  as  to  satisfy  the 

statute  ? 

The  acceptance  and  receipt  are  both  necessary.  The  contract 
is  not  valid  unless  the  buyer  does  both.  These  arc  two  distinct 
things.  There  may  be  an  actual  receipt  without  an  acceptance, 
and  an  acceptance  without  a  receipt.  The  receipt  of  the  goods 
is  the  act  of  taking  possession  of  them.  When  the  seller  gives 
to  the  buver  the  actual  control  of  the  goods,  and  the  buyer  ac- 
cepts   such    control,   he    has    actually  received  them.     Such  a 


RSONAI.   I'KOI'KRTV 


^ait  tlic  huyei's  order." 
aiicc  of  the  goods.  The 
;itlier  orifTin.illy  aiithor- 
the  buyer,  and  that  the 
?rett,  J.,  put  in  a  stron<j^ 
L'  1)1; ver  could  have  im- 
l»y  the  seller.  It  was 
2  that  by  agreement  be- 
uthoritv  to  the  seller  to 
3.  he  gave  up  his  power 
oods  not  corresponding 
;  such  authority  and  re- 
has  not  been  contended 
MTis  to  me  to  be  conchi- 
ive  the  plaintiff  author- 
im.  Under  the  circum- 
say  that  the  property 
iral  principle  was  main- 
:^5o,  where  it  was  held 
e  goods  in  a  state  to  be 
as  the  acceptance  of  the 
f   the  contract,  had  not 

ry  as  it  was  in  its  nature, 
lids,  there  would  have 
vendor  to  pass  the  title. 
2ven  at  common  law  an 

this  would  have  been  an 
ire,  without  reference  to 
ceptancc  and  a  receipt" 
uycr,  so  as  to  satisfy  the 

lecessary.  The  contract 
These  arc  two  distinct 

without  an  acceptance, 
rhe  receipt  of  the  goods 

When  the  seller  gives 
oods.  and  the  buyer  ac- 
rcceived  them.     Such  a 


COOKE    V.  Mil. I. Aim. 


39' 


i 


receipt  is  often  an  evidence  of  an  acceptance,  but  it  is  not  tlie 
same  thing.  Indeed,  the  receipt  by  the  buyer  may  be,  and  otleu 
is,  for  the  express  purpose  of  seeing  whether  he  will  accept  or 
not.  IJlackb.  Sales,  io6;  see  Brand  v.  Focht,  3  Keycs,  toy, 
Stone  V.  Browning,  ^i  N'-  '^'-  21 1. 

There   are  some  dicta,  of  various  judges,  cited  by  the  phuu- 
tiffs  to  the  effect  that    acceptance   and  receipt  are  equivalent. 
Per  Crompton,  J.,  and  Cockburn,   Ch.   B.,  in  Castle  v.   Swor- 
der,  6  II.   .-^   N.   83.;   per  Erie,  C.  J.,  in  Marvin  v.  Wall.s,  6 
E.  &  li.  726.     These  remarks   can   not  be  regarded  as  of  any 
wei<-ht."being  contrary  to  the  decided  current  of  authority.    In- 
deed, a  late  and  approved  writer  says:    "It  may  be  conrulcntly 
assumed,    however,   that  the  construction  which  attributes  dis- 
tinct meaning  to  the  two  expressions,  'acceptance'  and  'actual 
receipt,'  is  now  too  firmly  settled  to  be  treated  as  an  open  ques- 
tion   and  this  is  plainly  to  be  inferred  from  the  opinions  deliv- 
ered in  Smith  v.  Hudson."  6  B.  Sc  S.  436;   Benj.  Sales. 

It  can  not  be  conceded  that  there  was  any  acceptance  in  the 
present  case  by  reason  of  the  acts  and  words  occurring  between 
the  parties  after  the  parol  contract   and  before  the  goods  were 
prepared  for  delivery.     There  could  be  no  acceptance  without 
the  assent  of  the  buyers  to  the  articles  in  their  changed  condi- 
tion,  and  as  adapted  to  their  use.     If  die  case  had  been  one  of 
specific  goods  to  be  selected  from  a  mass  without  any  prepara- 
tion to  be  made,   and  nothing  to  be   done  by   the  vendor  but 
merely  to  select,  the  matter  would  have  presented  a  very  differ- 
ent aspect.     This  distinction  is  well  pointed  out  by  Willes,  J., 
in  Bog  Lead  Mining  Company  v.  Montague,  10  C.  B.  (N.  S.) 
48 1     "in  this  case  the  question  turned  upon  the  meaning  of  the 
word  "acceptance,"  in  another  statute,  but  the  court  proceeded 
on  the  analogies  supposed  to  be  derived  from  the  construction 
of  the  same  word  in  the  statute  of  frauds.    The  question  was  as 
to  what  was  necessary  to  constitute  an  "acceptance"  of  shares 
in  a  mining  company,  under  19  and  20  Victoria,  chap.  47-   '^ic 
court  having  likened  the  case  to  that  of  a  sale  of  chattels,  said : 
"It  may  be  that  in   the   case  of  a  contract  for  the  purchase  of 
unascertained  property  to  answer   a  particular  description,  no 
acceptance  can  be  properly  said  to  take  place  before   the  pur- 
chaser  has  had  an  opportunity  of  rejection.     In  such  a  case,  the 
offer  to  purchase  is  subject  not  only  to  the  assent  or  dissent  of 


3y- 


MOPKS  OF   OUTAIMNG   TITI-K   TO   I'KKSONAI-   l>l{01'i;it  I  V. 


the  seller,  but  also  to  the  coiulltion  that  the  property  to  l>e 
tlelivered  by  bim  shall  answer  the  stipulated  description.  A 
rit'ht  of  inspection  to  ascertain  whether  such  condition  has  been 
complied  with  is  in  the  coiileniplation  of  l)oth  rarties  to  such  a 
contract;  and  no  complete  and  linal  acceptance,  so  as  irrevoca- 
bly to  vest  the  property  in  the  buyer,  can  take  place  before  he 
has  exercised  or  waived  that  right.  In  ortler  to  constitute  such 
a  llnal  and  complete  acceptance,  the  assent  of  the  buyer  should 
follow,  not  precede,  that  of  the  seller.  I5ut  where  the  contract 
is  for  a  spccilic,  ascertained  chattel,  the  reasoning  is  altogether 
different.  Ecpially,  where  the  offer  to  sell  and  deliver  has  been 
first  made  by  the  seller  and  afterward  assented  to  by  the  buyer, 
and  where  the  offer  to  buy  and  accept  has  been  first  made  by 
the  buyer  and  afterward  assented  to  by  the  seller,  the  contract 
is  complete  by  the  assent  of  both  parties,  and  it  is  a  contract  the 
expression  of  which  testifies  that  the  seller  has  agreed  to  sell 
and  deliver,  and  the  buyer  to  buy  and  accept  the  chattel." 
Pages  4S9,  490. 

This  view  is  confirmed  by  Maberley  v.  Sheppard,  10  Hing. 
go.  That  was  an  action  for  goods  sold  anc!  delivered,  and  it 
was  proven  that  the  defendant  ordered  a  wagon  to  be  made  for 
him  by  the  plaintiff,  and,  during  the  progress  of  the  work,  fur- 
nished the  iron  work  and  sent  it  to  the  plaintiff,  and  sent  a  man 
to  help  the  plaintiff  in  fitting  the  iron  to  the  wagon,  and  bought 
a  tilt  and  sent  it  to  the  plaintiff  to  be  put  on  the  wagon.  It  was 
insisted,  on  these  facts,  that  the  defendants  had  exercised  such 
a  dominion  over  the  goods  sold  as  amounted  to  an  acceptance. 
The  court,  per  Tindal,  Ch.  J.,  held  that  the  plaintiff  had  been 
rio-htly  nonsuited,  because  the  acts  of  the  defendant  had  not 
been  done  after  the  wagon  was  finished  and  capable  of  deliv- 
ery, but  merely  while  it  was  in  progress,  so  that  it  still  remained 
in  the  plaintiff's  yard  for  further  work  until  it  was  finished. 
The  court  added:  "If  the  wagon  had  been  completed  and 
ready  for  tlclivery  and  the  defendant  had  then  sent  a  workman 
of  his  own  to  perform  any  additional  work  upon  it,  such  con- 
duct on  the  part  of  the  defendant  might  have  amounted  to  an 
acccpt.mce."      See,  also,  IJenj.  Sales,  chap.  4.  and  cases  cited, 

The  plaintiffs,  in  the  case  at  bar,  rely  much  upon  the  decision 
in  Morton  v.  Tibbett,  15  Ad.  .t  El.  (X.  S.)  428.  They  main- 
tain that  this  case  clearly  establishes  that  there  may  i)e   an   ac- 


KKSONAI,  i>i{ori:ii  I  V. 

tliat  tlie  property  to  l)e 
ipiilatcfl  description.  A 
•  such  coiuUtioii  has  hcfii 
:)f  botli  rarties  to  siu'h  a 
ceptaiu'c,  so  as  irrcvoca- 
cau  take  phice  liefore  lie 
,  order  to  constitute  such 
.scut  of  the  buyer  shouKI 
But  where  the  contract 
2  reasonin<^  is  altofjether 
;e!l  and  deliver  has  been 
assented  to  l>y  tlie  l)uyer. 
it  has  been  first  made  by 
ly  the  seller,  the  contract 
.s.  and  it  is  a  contract  the 
!  seller  has  a-^reed  to  sell 
and  accept  the  chattel," 

y  V.  vSheppard,  lo  15in<j;. 

old  aiKs  delivered,  and  it 
a  wagon  to  be  made  for 

ro;.^ress  of  the  work,  fur- 
plaintiff,  and  sent  a  man 

0  the  wagon,  and  bought 
lut  on  the  wagon.  It  was 
dants  had  exercised  such 
ounted  to  an  acceptance, 
hat  the  plaintiff  had  been 
)f  the  defendant  had  not 
led  and  capable  of  deliv- 
is,  so  that  it  still  remained 
rk  until  it  was  finished, 
lad  been  completed  and 
had  then  sent  a  workman 

1  work  upon  it,  such  con- 
fht  have  amounted  to  an 

chap.  4.  and  cases  cited. 
V  much  upon  the  decision 
N.  S.)  4 28.  They  main- 
hat  there  mav  i)e   an   ac- 


COOKK    V.    MM. I. AIM). 


393 


ceptance  and  receipt  of  goods  by  a  purchaser,  within  the  statute 
of  frauds,  although  he  has  had  no  opportunity  of  examining 
them,  and  although  he  has  done  nothing  to  preclude  himself 
from  objecting  that  they  do  not  correspond  with  the  contract. 

The  expressions  in   Morton   v.  Tibbett  are  not  to  be  pressed 
any  further  than  the  facts  of  the  case  re.iuire.      The   buyer    of 
wheat  by  sample  had  sent  a  carrier  to  a  place  named  m  a  verbal 
contr.nct  between  him  and  the  seller  on  August  25.    The  wheat 
was  received  on  board  of  one  of  the  carrier's  lighters  for  con- 
veyance bv  canal  to  Wisbeach,  where   it  arrived  on  the  twenty- 
eighth.   In"  the  meantime  it  had  been  resold  by  the  buyer,  by  the 
same  sample,  and  was  returned  by  the  second  pui  -baser  because 
found  to  be  of  short  weight.     The  defendant  then  wrote   to  the 
plaintiff  on  the  thirtieth,  also  rejecting  it  for  short  weight.     An 
action  was  brought  for  goods  bargained  and  sold.     There  was 
a  verdict  for  plaintiff,  with  leave  to  move  for  a    nonsuit.     The 
question  for  the  appellate  court  was,  whether  there  was  any  evi- 
dence that  the  defendant  had  accepted  and   received  the  goods 
so  as  to  render  him  liable  as  buyer.     The   court  held   that  the 
acceptance  under  the  statute  was  not   an  act  subsecjuent  to  the 
receipt  of  the  goods,  but  must  precede,  or  at  least  be  contempo- 
raneous with  it;  and  that  there  might  be  an  acceptance  to  sat- 
isfy the  statute,  though  the  purchaser  might  on  other  grounds 
disadirm  the  contract. 

Morton  v.  Tibbett  decides  no  more  than  this,  viz.,  that  there 
may  be  a  conditional  acceptance.  It  is  as  if  the  purchaser  had 
said:  "I  take  these  goods  on  the  supposition  that  they  comply 
with  the  contract.  I  am  not  bound  to  decide  that  point  at  this 
moment.  If,  on  examination,  they  do  not  correspond  with  the 
sample,  I  shall  still  return  them  under  my  common  law  right, 
growing  out  of  the  very  nature  of  the  contract,  to  declare  it  void,' 
because  our  minds  never  met  on  its  subject-matter— non  in  haec 
foedera  veni."  It  is  not  necessary  to  decide  whether  this  dis- 
tinction is  sound.  It  is  enough  to  say  that  it  is  intelligible. 
The  case,  in  no  respect,  decides  that  there  can  be  an  acceptance 
under  the  statute  of  frauds  without  a  clear  and  distinct  intent, 
or  that  unfinished  articles  can  be  presumed  to  be  accepted  be- 
fore they  are  finished.  The  act  of  acceptance  was  clear  and 
unequivocal.  There  was  a  distinct  case  of  intermeddlmg  with 
the  goods  in  the  exercise  of  an  act  of  ownership— a  fact  entirely 


7,i)\       M()1)|;.S  <>|-   OltlAINlNG   TITLE   TO   I'KUhON  AI.   I'ltOl'i:  UTV. 


\vaiitiii<,'  ill  tlie  case  at  liar.  Tlic  proof  of  acceptance  was  the 
act  of  resale  before  examination.  The  point  of  tlie  decision  is, 
tiiat  tliis  was  sucii  an  exercise  of  dominion  over  tiie  goods  as  is 
inconsistent  witii  a  continnancc  of  the  ri}j;lits  o!"  property  in  tlie 
vendor,  and  therefore  evidence  to  justify  a  jury  in  tindinj,'  accept- 
ance as  well  as  actual  receipt  hy  the  buyei.  Hunt  v.  Mecht,  S 
Excli.  S14. 

Even  when  interpreted  \r  this  way,  Morton  v.  Tihbett  can 
not  be  rcjjarded  as  absohuoly  settled  law  in  l^ngland.  Sec 
Coombs  V.  Bristol  i*^  I^xeter  R'y  Co.,  ^  II.  I't  N.  510;  Castle 
v.  Sworder,  Cf  Id.  S2S.  The  court  of  queen's  bench  recofr- 
nizes  it,  while  the  court  of  exchecpier  has  not  received  it  with 
favor.  Later  cases  distinctly  hold  that  the  acceptance  must 
take  place  after  an  opportunity  by  the  vendee  to  exercise  an 
option,  or  after  the  doiiifj  of  some  act  waiving  it.  IJramwell, 
H.,  said  in  Coombs  v.  iJristol  i*v:  Exeter  R'y  Co. :  "The  cases 
establish  that  there  can  be  no  acceptance  where  there  can  be 
no  opjiortunity  for  rejecting."  All  the  cases  were  reviewed 
in  Smith  v.  Hudson.  6  Hest  &  Smith,  .\;^i,  A.  I).  1S65,  where 
Hunt  v.  Hecht  w  as  approved.  The  two  last  cited  cases  disclose 
a  principle  aj^plicable  to  the  case  at  bar. 

In  Hunt  V.  Hecht  the  defendant  went  to  the  plaintiff's  ware- 
house and  there  inspected  a  heap  of  ox  bones,  mixed  with 
others  inferior  in  quality.  The  tlefendant  verbally  agreed  to 
purchase  those  of  the  better  quality,  which  were  to  be  separated 
from  the  rest,  and  ordered  them  to  be  sent  to  his  wharfinger. 
The  bags  were  received  on  the  ninth,  and  examined  next  d.iy  by 
the  defendant,  and  he  at  once  refused  to  accept  them.  There 
was  held  to  be  no  acceptance.  The  case  was  put  upon  the 
ground  that  no  acceptance  was  possible  till  after  separation, 
and  there  was  no  pretense  of  an  acceptance  after  that  time. 
Martin,  I?.,  said  that  an  acceptance,  to  satisfy  the  statute,  must 
be  something  niore  than  a  mere  receipt.  It  means  some  act 
done  after  the  vendee  has  exercised  or  had  the  means  of  cxer- 
cis'Tig  liis  right  of  rejection. 

In  Smith  v.  Hudson,  supra,  barley  was  sold  on  November  3, 
1S63,  by  sample,  by  an  oral  contract.  On  the  seventh  it  was  taken 
by  the  seller  to  a  railway  station,  where  he  had  delivered  grain 
to  the  purchaser  on  several  prior  dealings,  and  where  it  was 
his  custom  to  receive   it  from   other   sellers.     The  barley  was 


EUSONAf,  I'HOPERTY. 

if  of  accept ancf  was  tlio 
;  point  of  (lie  decision  is, 
lion  over  tiie  goods  as  is 
rifjhts  ol"  property  in  tlie 
y  a  jnry  in  tiiulinj^  accept- 
uyei.      Hunt  v.  Ilecht,  S 

Morton  V.  Til)bett  can 
law  in  I'^ntjland.  Sec 
7,  II.  iV:  N.  510;  Castle 
)£  queen's  bench  recofj- 
lias  not  received  it  with 
Kit  the  acceptance  must 
he  vendee  to  exercise  an 
waivinfj  it.  IJramwell, 
r  R'y  Co. :  "The  cases 
incc  where  there  can  be 
lie  cases  were  reviewed 
431,  A.  D.  i^Cy^,  where 
o  last  cited  cases  disclose 
r. 

It  to  the  plaintiff's  ware- 
:  ox  bones,  mixed  with 
dant  verbally  agreed  to 
liich  were  to  be  separated 
;  sent  to  his  wharfinger, 
nd  examined  next  day  by 
to  accept  them.  There 
:ase  was  put  upon  the 
lie  till  after  separation, 
iptance  after  that  time. 
satisfy  the  statute,  must 
pt.  It  means  some  act 
had  the  means  of  cxer- 

vas  sold  on  November  3, 
n  the  seventh  it  was  taken 
B  he  had  delivered  grain 
ngs,  and  where  it  was 
sllers.     The  barley  was 


CdOKi:    V.    MII.I.AKn. 


395 


left  at  the  freight  house  of  the  railway,   consigned  to  tlu-  order 
of  the  purchaser.     It  was  the  custom  of  tlu-  trade  for  thi'  buver 
to  compare  the  sample  with  tiie  bulk    as   delivered,   and  if  the 
examination  was  not  satisfactory,   to  reject  it.     Tiiis  right  con- 
tinued in  tlie  present  case,   notwithstanding  the  delivery  ol  the 
grain  to  the  railway  company.   On  the  ninth  the  inirchaser  became 
bankrupt,  and  on  the   eleventh  the  seller  notified   the   station- 
master  not  to  deliver  the  barley  to  the  purchaser  or  his  assignees. 
The  court  held  that  there  was  no  acceptance  suHlcient  to  satisfy 
the  statute.     The  most  that  could  be  said  was  that  the  delivery 
to  the  companv,  considered  as  an  agent  of   the   buyer,    was  a 
receipt.     It  could  not  be  claimed   tiiat    it   was  an  acceiUance, 
the  carrier  having  no  implied  authority  to  accei^t.      The  buyer 
had  a  right  to  see  whether  the  bulk  was  according  to  the  sam- 
ple, and  until  he  had  exercised  that  right  there  was  no  accept- 
ance.    Opinion  of  Cockburn,  Ch.  J.,  4^^;   ^'''■N  -'•**"'  Caulkins 
V.  Ilellman,  47N.  Y.  449,    7    A'"-    '<n^-    ^'"  =     Halterline   v. 
Kice,  62  Harb.  593;   Edwards  v.   Orand   Trunk    R'y   Co.,  4S 

Me.  379;  S.  C,  S4lil-   "I- 

The  case  at  bar  only  differs  from  these   cases   in   the    unma- 
terial  fact  that  the   defendants,    after   the    verbal    contract   was 
made,  gave  verbal  directions  as  to  the  dispcjsition  which  should 
be   made   of  the  goods   after  they   were   put   into  a  condition 
ready    for    deliverv.      Ml    that    sub  .eciuently    passed    between 
them  was  mere  words,  and  had   not   the   slightest   tendency  to 
show  a  waiver  of  the  right  to  examine  the  goods  to  see  if  they 
corresponded  with  the  contract.      Whatever  effect  these  words 
might  have  had  in  indicating  an  acceptance,   if  the  goods  had 
been  specific  and  ascertained  at  the  time  of  tlie  directions  (see 
Cusack  V.  Robinson,  i  Rest  Isc  Smith,  299),  they  were  without 
significance   under   the   circumstances,    as   the    meeting  of  the 
minds  of  the  parties  upon  the  subject  to  be  settled  was  neces- 
sarv.     Shepherd  v.   Pressgy,   32   N.    H.   57-     I"  ^'^'s  '^''^^'  ^^"^ 
effect  of  subsequent  engagements  by  the  buyer  was  passed  upon 
as  to  their  tendency  to  show  a  receipt    of    the   goods   by   him. 
The  court  said:      "As  mere  words  constituting  a  part  of  the 
original  contract  do  not  constitute  an  acceptance,   so  we  are  of 
opiiiion  that  mere  words  after  words  used,  looking  to  the  future, 
to  acts  afterward  done  by  the   buyer   toward   carrying  out  the 
contract,  do  not  constitute  an  acceptance   or   prove   the  actual 


^(jft     MoDKs  OF  (ini.\i\i\(i  riri.K  m  peusonai.  i-hoi'KU  iy. 

leri'i])!  iT(iiiiri'(l  l>y  the  statute."  The  case  was  stiDiiyjcr  than 
tliat  iiiider  discussion,  as  the  {j<><>''s  wcmc  specific  ami  fully  set 
apait  lor  the  purchaser  at  the  lime  of  tiie  suhseipient  convcrsa- 
lioiis.  No  distinction  is  perceived  between  future  acts  to  he 
<lone  hy  the  huver  and  hy  the  seller,  as  both  equally  derive  tiieir 
force  from  the  buyer's  assent. 

I  see  no  reason  in  the  case  at  bar  to  hold  that  the  defendants 
received  the  i,'0()ds,  independent  of  the  matter  of  acceptance. 
There  was  no  evidence  that  I'ercival  became  their  aj^ent  for 
this  purpose.  The  most  that  can  be  said  is  that  they  promised 
the  plaintiffs  that  they  would  make  I'ercival  their  agent.  This; 
promise  beinjj  oral  and  connected  with  the  sale  is  not  binding. 
They  did  not,  in  fact,  communicate  with  liim,  nor  did  he  assume 
nny  dominion  or  control  over  the  property.  The  promissory 
representations  of  the  plaintiffs  are  clearly  within  the  rule  in 
Shepherd  v.  Trcssey.  supra. 

The  whole  case  falls  within  the  doctrine  in  Shindler  v.  Hous- 
ton, I  N.  Y.  261,  49  Am.  Dec.  316,  there  being  no  sufficient 
act  of  the  parties  amounting  to  transfer  of  the  possession  of  the 
lumber  to  the  buyer  and  acceptance  by  him. 

Tlie  judgment  of  the  court  below  should  be  affirmed. 

All  concur. 

Judgment  aftiimed. 

CoNsri.T — Parsons  v.  I.oiicks,  48  N.  Y.  17,  8  Am.  Hep.  517;  W-iiren 
Cl-emical  i.'o.  v.  llolhrook,  118  N.  Y.  586,  16  Am.  St.  Rep.  788;  Eich- 
ell)erger  v.  McCauley,  5  II.  &  J.  213,  9  Am.  Dec.  514;  Reutcli  v.  Long, 
27  Md.  iSS. 


§  73.    The  value. 

BALDEY  V.  PARKER. 

[2  13.  &  C.  37-] 

English  Court  of  King's  Bench,  1823. 

Assumpsit  for  goods  sold  and  delivered.  Plea,  general  issue. 
At  the  trial  before  Abbott,  C.  J.,  at  the  London  sittings  after 
Trinitv  term,  1822,  the  following  appeared  to  be  the  facts  of 
the  case:      The  plaintiffs  are  linen-drapers,  and  the  defendant 


M 


KUS(3NA1.  I'KOl'EnrY. 

case  was  stiouyur  than 

le  specific  ami  fully  set 

lie  siil)setiiient  convcisa- 

ween   fiitiiie   acts   to  he 

both  equally  derive  tlieir 

hold  that  the  defendants 
_■  matter  of  acceptance, 
became  their  ajjent  for 
lid  is  that  they  promised 
rcival  their  a^ent.  Thih 
1  the  sale  is  not  l)iniiin<j. 
th  liim,  nor  did  he  assume 
)perty.  The  promissory 
;aiiy  within   the   rule  in 

rine  in  Shindler  v.  IIous- 
hcre  being  no  sulHcicnt 
r  of  the  possession  of  the 
'  him. 
ould  be  affirmed. 

Judgment  affiimed. 

7,  8  Am.  Rep.  517;  Wiiren 
16  Am.  St.  Rep.  7SS;  Eich- 
Dec.  514;  Reutcli  v.  Long, 


LKER. 


Bench,  1823. 


ed.  Plea,  general  issue, 
he  London  sittings  after 
;ared  to  be  the  facts  of 
pers,  and  the  defendant 


PAI.UKY    \.   fAUKKR. 


.-^97 


came  to  their  shop  and  bargained  for  various  articles.     A  sep- 
arate price  was  agreed  upon  for  eacii,   and  no  one  article  was 
nf  the  value  of  ten  pounds.      Some  were  measured  in  his  pres- 
ence;  some  he  marked   with    a   pencil;    others   lie   assisted    ui 
cutting  from  a  larger  bulk.      Ik-  then  desired  an  account  ot  the 
whole  to  be  sent  to  liis  house,  and    went  away.      A  bill  of  par- 
cels was  accoi>!i!.gly  made  out  and  sent   by  a   shopman.     The 
amount  of  the    goods    was    seventy    pounds.      The   deten.lant 
looke.l  at  the   account,    and    asked    what    discount    would    be 
.,ll„wed  for  rea.lv  money,  and  was  told  five  pounds  per  cent; 
he  replied  tliat  it  was  too  little,  and  reiiuested  to  see  the  person 
of  whom  he  bought  the  goods   (Baldey).    as   he   coul.l  bargam 
with  him  respecting  the  discount,  and  said  that  he  ought  to  be 
allowed  twenty  pounds  per  cent.     The  gooils   were   afterward 
sent  to  the  defendant's  house,  and   he    refused   to  accept  them. 
The    lord    chief    justice    thought  that   this   was   a  contract  for 
.roods  of  more  than  the  value  of  ten  pounds  within  the  meanmg 
of  the  seventeenth  section    of    the   statute   of   frauds,    :uul   not 
within  any  of  the  exceptions  there    mentioned,    and   dirccteil  a 
nonsuit ;     but   gave   the  plaintiffs  leave  to  move  to  enter  a  ver- 
dict in  their  favor  for  seventy  pounds.     A  rule  having  accord- 
ingly been  obtained  for  that  purpose. 

AnnoTT   C.  J.— We  have  given  our  opinion  upon  more  than 
one  occasion  that  the  29  Car.  2,  c.  3,  is  a  highly  beneficial  and 
remedial  statute.     We  are,  therefore,  bound  so  to  construe   it 
as  to  further  the  object  and  iutenr.ion  of  the  legislature,   which 
was  the  prevention  of   fraud.     It  appeared   from   the  facts   of 
this  case  that  the  defendant  went  into  the  plaintiff's  shop  and 
bargained    for   various    articles.     Some  were   severed   from  a 
l.„-<rer  bulk,    and   some   he   marked   in  order  to  satisfy  himself 
th-ft  the  same    were    afterward    sent  home   to  him.     The  first 
cuicstion  is  whether  this  was.one  entire  contract  tor  the  sale  ot 
all  the  goods.     By  holding  that  it  was  not,   we  should  entirely 
defeat  the  object  of  the  statute.     For  then  persons  intending  to 
buy  many  articles  at  one   time,    amounting   in  the   whole   to   a 
large  price,  might  withdraw  the   case  from  the  operation  of  the 
statute  by  making  a  separate  bargain  for  each  article.     Looking 
-xt  the  whole  transaction,  I  am  of  opinion  that  the  parties  must 
be  considered  to  have  made  one  entire  contract  for  the  whole 


39^       MOUKS  or   OHTAIN1NG  TITLK  TO  I'KKSOXAL  I'HOl'KKTV. 

of  the  articles.  The  plaliil.fts,  uereforc,  can  not  maintain  tl 
action  unless  they  can  show  that  the  case  is  within  the  exce 
tion  of  the  29  Car.  2,  c.  7,.  sec.  17.  Xovv  the  words  of  th 
cxce]nion  are  peculiar,  "except  the  buyer  shall  accept  part 
the  sootls  so  sold,  and  actually  receive  the  same."  It  wou 
be  dilHcult  to  find  words  more  distinctly  denotinj;;  an  actu 
transfer  of  the  article  from  the  seller,  and  an  actual  taking  pc 
session  of  it  by  the  buyer.  If  we  held  that  such  a  transfer  ai 
acceptance  were  complete  in  this  case,  it  would  seem  to  folic 
as  a  necessary  consequence  that  the  vendee  might  maintf 
trover  without  paying  for  the  goods,  and  leave  the  vendor 
this  action  for  the  price.  Such  a  doctrine  would  be  higl 
injurious  to  trade,  and  it  is  satisfactory  to  find  that  the  Ir 
warrants  us  in  saying  that  this  transaction  had  no  such  effect. 

Bavi.ky,  J. — The  buyer  can  not  be  considered  to  hr 
actuallv  received  the  goods,  when  they  have  remained  frc 
lirst  to  last  in  the  possession  of  the  seller.  The  plaintiffs  i 
not  assisted  by  the  exception  of  the  seventeenth  section  of  t 
statute  of  frauds.  Then  the  question  is,  whether  there  was 
separate  contract  for  each  article.  The  29  Car.  2,  c.  ;j,  v 
passed  to  guard  against  frauds  and  perjuries;  and  it  must 
collected  from  the  seventeenth  section  that  the  legislati 
thought  that  a  contract  to  the  extent  of  ten  pounds  might 
sufficient  to  induce  the  parties  to  it  to  bring  tainted  evidei 
into  court.  Now  it  is  conceded  here  that  on  the  same  day,  a 
indeed,  at  the  same  meeting,  the  defendant  contracted  with 
plaintiffs  for  the  purchase  of  goods  to  a  much  greater  amoi 
than  ten  pounds.  Had  the  entire  value  been  set  upon  the  wh 
goods  together,  there  can  not  be  a  doubt  of  its  being  a  contr 
for  a  greater  amount  than  ten  pounds  within  the  seventeei 
section  of  the  statute ;  and  I  think  that  the  circumstance  o 
separate  price  being  fixed  upon  each  article  makes  no  such  ( 
ference  as  will  take  the  case  out  of  the  operation  of  that  la 
It  has  been  asked  what  interval  of  time  must  elapse  bet"- 
the  purchase  of  different  articles  in  order  to  make  the  contr 
separate ;  and  the  case  has  been  put  of  a  purchaser  leaving 
shop  after  making  one  purchase,  and  returning  after  an  inter 
of  five  or  ten  minutes  and  making  another.  If  the  /otuni 
the  shop  were  soon  enough  to  warrant  a  supposition  that 


)  PKKSUNAL   PHOrKUTV. 

jforc,  can  not  maintain  this 
case  is  within  the  excep- 
,  Xovv  the  words  of  that 
buyer  shal)  accept  part  of 
>ive  the  same."  It  would 
itiiictly  denotinjij  an  actual 
.  and  an  actual  takinsjf  pos- 
;ld  that  such  a  transfer  and 
se,  it  would  seem  to  follow 
le  vendee  nii^ht  maintain 
,  and  leave  the  vendor  to 
doctrine  would  be  highly 
actor V  to  find  that  the  law 
nction  had  no  such  effect. 

ot   be    considered    to    have 
they  have  remained  from 

seller.      The  plaintiffs  are 

seventeenth  section  of  the 

»n  is,   whetlier  there  was  a 

The  39  Car.  2,  c.  jj,  was 

perjuries ;  and  it  must  be 
ection  that  the  legislature 
it  of  ten  pounds  might  be 
to  bring  tainted  evidence 
e  that  on  the  same  day,  and 
fendant  contracted  with  the 

to  a  much  greater  amount 
alue  been  set  upon  the  whole 
loubt  of  its  being  a  contract 
ids   within   the   seventeenth 

that  the  circumstance  of  a 
h  article  makes  no  such  dif- 

the  operation  of  that  law. 

time   must  elapse  bet"'  en 

order  to  make  the  contract 

t  of  a  purchaser  leaving  a 

id  returning  after  an  interval 

another.     If  the   /eturn  to 

rant  a  supposition  that  the 


HAI.DKV    v.   I'AKKKIJ. 


399 


whole  was  intended  to  be  one  transaction,  I  should  hold  it  one 
entire  contract  within  the  meaning  of  the  statute.  I  am,  there- 
fore, of  opinion  that  this  rule  must  be  discharged. 

lIoi.Rc  VI),  J. — I  am  of  the  same  opinion.      The  intention  of 
tlie  statute  was  that  certain  requisites  should  be  observed  in  all 
contracts  for  the  sale  of  goods  for  the  price  of  ten  pounds  and 
upward.     This  was  all    one   transaction,   though  composed  of 
different  parts.     At   first  it  appears  to  have  been  a  contract  for 
goods  of  less  value   than   ten   pounds,   but  in  the  course  of  the 
dealing  it  grew  to  a  contract  for  a   much   larger  amount.     At 
last,  therefore,  it  was  one  entire  contract  within   the  meaning 
and  mischief  of  the  statute  of  frauds,   it  being  the  intention  of 
that  statute  that  where  the  contract,   either  at  the   commence- 
ment or  at  the  conclusion,  amounted  to  or  exceeded  the  value 
of  ten  pounds,  it  should   not   bind   unless  the   retiuisites  there 
mentioned  were  complied  with.      The  danger  of  false  testimony 
is  quite  as  great  where  the  bargain  is  ultimately  of  the  value  of 
ten  pounds,  as  if  it  had   been   originally   of   that   amount.     It 
mi-st,  therefore,  be  considered  as  one  contract  within  the  mean- 
ing of  the  act.     With  respect  to  the  exception  in  the  seventeenth 
section,  it  may,  perhaps,  have  been  the  intention  of  the  legisla- 
ure  to  guard  against  mistake  where  the  parties  mean   honestly 
as  well  as  against  willful  fraud ;   and  the  things  required  to  be 
done  will  have  the  effect  of  answering  both  those  ends.     The 
words  are,  "except  the  buyer  shall  accept  part  of  the  goods  so 
sold  and  actually  receive  the  same,   or  give  something  in  ear- 
nest to  bind  the  bargain  or  in   part   of  payment,   or  that  some 
note  or  memorandum  in  writing  of  the  said   bargain  be   matle 
and  signed  by  the  parties  to  be  charged  by  such  contract,  or 
their  agents  thereunto   lawfully    authorized."     Each  of   tho.-.c 
particulars  cither  shows  the   bargain    to  be    complete,    or  still 
further  that  it  has  been  actually  in  part  performed.     The  change 
of  possession  does  not  in  ordinary   cases  take  place  until  the 
completion  of  the  bargain ;   part  payment  also  shows  the  com- 
pletion of  it;   and   in   like  manner    a   note  or   memorandum  in 
writing  signed  by  the   parties  plainly  proves   that  they  under- 
btood    the    terms    upon  which   they  were  dealing,    and   meant 
finally  to  bind  themselves  by  the  contract  therein   stated.     In 
the  present  case    there    is    nothing  to  show  that  some  further 


400       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  rilOPERTV. 

arrangement  might  not  remain  unsettled  after  the  price  for  each 
article  had  been  agreed  upon.  There  was  neither  note  nor 
memorandum  in  writing;  no  part  of  the  price  was  paid,  nor 
was  there  any  such  change  of  possession  as  that  contemplated 
by  the  statute.  Upon  a  sale  of  specific  goods  for  a  specitlc 
price,  by  parting  with  the  possession  the  se'ler  parts  with  his 
lien.  The  statute  contemplates  such  a  parting  with  the  pos- 
session ;  and.  therefore,  as  long  as  the  seller  preserves  his  con- 
trol over  the  goods  so  as  to  retain  his  lien,  he  prevents  the 
vendee  from  accepting  and  receiving  them  as  his  own  within 
the  meaning  of  the  statute. 

Best,  J.— It  was  formerly  considered  that  a  delivery  of  the 
goods  by  the  seller  was  suihcient  to  take  a  case  out  of  the  sev- 
enteenth section  of  the  statute  of  frauds;  but  it  is  now  clearly 
settled  that  there  must  be  an  acceptance  by  the  buyer  as  well 
as  a  delivery  by  the  seller.     The  statute  enacts  that,  where  the 
bargain  is  for  something  to  the  value  of  ten  pounds,  it  shall  not 
bind,  unless  something  unequivocal  has  been  done  to  show  that 
the  contract  is  complete.     Nothing   of   that   kind   having  been 
done  in  this  case,   if  the   dealing   is    to    be    considered   as   one 
entire  transaction  it  is  clear  that  the  plaintiffs  can  not  recover; 
whatever  this  might  have  been  at  the  beginning,  it  was  clearly 
at  the  close  one  bargain  for   the  whole    of   the   articles.     The 
account  was  all  made  out  together,  and   the  conversation  about 
discount  was  with  reference  to  the  whole  account.     It  is,  there- 
fore, very  distinguishable  from  Emmerson  v.  Heelis,  2  Taunt. 
38,  where  a  complete  baigain  was  made   as   to  each  article  as 
soon  as  the  auctioneer  had  signed  his  name  to  it. 

Rule  discharged. 

CoNSVLT— AUard  v.  Greasert.  61  N.  Y.  I,  12  Am.  Rep.  48;  Jenners 
V.  Wendell,  51  N.  H.  67;  Gault  v.  Brown,  48  N.  II.  1S3;  Walker  v. 
Lovell,  28  N.  II.  13S,  61  Am.  Dec.  605;  Goodwin  v.  Clark,  65  Me.  280; 
lUown  V.  Sanborn,  21  Minn.  402;  Carpenter  v.  Galloway,  73  Ind.  41S; 
Wells  V.  Day,  124  Mass.  38;    McMuller  v.  Riley,  6  Gray,  506. 


SONAI.  PROPERTY. 

after  the  price  for  each 
was  neither  note  nor 
;  price  was  paid,  nor 
as  that  contcrnphUcd 
:  goods  for  a  specific 
;  se'Ier  parts  with  his 
parting  with  the  pos- 
[;ller  preserves  his  con- 
lien,  he  prevents  the 
3ni  as  his  own  within 


that  a  delivery  of  the 
!  a  case  out  of  the  sev- 
3 ;  but  it  is  now  clearly 
by  the  buyer  as  well 
enacts  that,  where  the 
ten  pounds,  it  shall  not 
been  done  to  show  that 
that   kind   having  been 
be    considered   as   one 
intiffs  can  not  recover ; 
eginning,  it  was  clearly 
of    the    articles.     The 
the  conversation  about 
le  account.     It  is,  there- 
son  V.  Heelis,  2  Taunt, 
le   as   to  each  article  as 
ame  to  it. 

Rule  discharged. 

12  Am.  Rep.  48;  Jenners 
,  48  K.  II.  183;  Walker  v. 
Ddwin  V.  Clark,  65  Me.  280; 
;r  V.  Galloway,  73  Iiid.  418; 
tiley,  6  Gray,  506. 


■•I 


MODES  OF  OBTAINING  TiTLli  TO  PKRSONAI,  PKOl'EUTV.       40^ 

§  74.    Acceptance  and  receipt  both  necessary. 
CAULKINS  V.  HELLMAN. 

[47  N.  Y.  449;  7  Am.  Rep.  461.] 

Court  of  Appeals  of  Ncu'  2'ork,  i8y2. 

Action  to  recover  for  wines  and  casks  sold  on  a  verbal  con- 
tract. 

Rapali.o,  J. — The  instructions  to  the  jury  as  to  the  legal 
effect  of  the  delivery  of  the  wine  at  Blood's  Station  in  conform- 
ity with  the  terms  of  the  verbal  contract  of  sale  were  clearly 
erroneous.  No  act  of  the  vendor  alone,  in  performance  of  a 
contract  of  sale  void  by  the  statute  of  frauds,  can  give  validity 
to  such  a  contract. 

Where  a  valid  contract  of  sale  is  made  in  writing,  a  deli  very- 
pursuant  to  such  contract  at  the  place  agreed  upon  for  delivery, 
or  a  shipment  of  the  goods  in  conformity  with  the  terms  of  the 
contract,  will  pass  tlie  title  to  the  vendee  without  any  receiptor 
acceptance  of  the  goods  by  him.  But  if  the  contract  is  oral, 
and  no  part  of  the  price  is  paid  by  the  vendee,  there  must  be 
not  only  a  delivery  of  the  goods  by  the  vendor,  but  a  receipt 
and  acceptance  of  them  by  the  vendee  to  pass  the  title  or  make 
the  vendee  liable  for  the  price ;  and  this  acceptance  must  be 
voluntary  and  unconditional.  Even  the  receipt  of  the  goods, 
without  an  acceptance,  is  not  sufficient.  Some  act  or  conduct 
on  the  part  of  the  vendee,  or  his  authorized  agent,  manifesting 
an  intention  to  accept  the  goods  as  a  performance  of  the  con- 
tract, and  to  appropriate  them,  is  required  to  supply  the  place 
of  a  written  contract.  This  distinction  seems  to  have  been 
overlooked  in  the  charge.  The  learned  judge  instructed  tHe 
jury,  as  a  matter  of  law,  that  if  they  were  satisfied  that  the  wine 
or  any  portion  of  it  was  actually  delivered  in  pursuance  of  the 
verbal  contract,  that  circumstance  was  sufficient  to  take  the 
contract  out  of  the  statute  of  frauds,  and  the  contract  was  a 
valid  one,  and  might  be  enforced  notwithstanding  it  was  not  in 
writing.     The  attention  of  the  jury  was  directed  to  the  in^juiry 

26 


402        MOnES  OK  Ol.TAININ.i   TITI.K    T..   n:KSONAI.   PUOPKUT V. 

whether  the  phiintiffs  had  faithfully  performed  their  part  of  the 
contract  rather  than  to  the  action  of  the  defendant,  and  the 
iudee  proceeded  to  state  that  if  the  wine  was  dehvere.l  to  the 
Upress  company  at  Hloo.l's  Station  in  good  ..rder  n,  mer- 
chantaMe  condiiion,  and  corresponded  in  quality  and  a  !  snh- 
stantialand  material  respects  with  the  samples  then  he  m- 
structed  the  jury  as  a  matter  of  law.  that  if  they  found  the  con- 
tract as  (iordon  testitle.l  with  respect  to  the  place  of  delivery, 
llr.t  was  a  complete  delivery  under  the  contract,  and  passed  the 
title  from  the  plaintiffs  to  the  defendant,  and  the  plaintiffs  were 
entitled  to  recover  the  contract  price  of  the  wines. 

The  plaintiffs  counsel  su-.-.^ests  in  the  statement  of  facts  ap- 
pended to  his  points,  that  Gordon  was  the  a-ent  of  the  .letend- 
„u  to  accept  the  -oods  at  Blood".  Station.  l?ut  this  statement 
'is  not  home  out  1-v  the  evidence;  Gordon  was  the  a.^ent  <.f  the 
pluntiffs  for  the  sale  of  the  goods;  it  was  incumhent  upon  them 
to  make  the  shipment.  Ml  that  (iordon  testifies  to  is  that  the 
defendant  requested  him  to  make  the  hest  hargain  he  could  for 
the  freight.  He  does  not  claim  that  he  had  any  authority  to 
accept  the  goods  for  the  defendant.  ,       ,     ,     , 

■Vccordin-  to  the  defendant's  testimony.  Gordon  clearly  had 
„o  such  authority,  nor  did  the  defendant  designate  any  convey- 
ance, and  the  judge  submitted  no  question  to  the  jury  as  to  the 
,uthority  either  of  Gordon  or  the  express  company  to  accept  the 
goods.    On  the  contrary,  he  repeated  that  if  when  the  wine  was 
rielivered    at    Hlood's  Station  it  was   in   good  order  and  corre- 
sponded with  the  samples,  the  plaintiffs  would  be  entitled  to  a 
verdict  for  the  contract  price,  upon  the  ground  that  the  parties 
bv  the  contract  (assuming  it  to  be  as  claimed  by  the  plaint.tfs), 
tKcd  upon   that  station  as  the  place  of  delivery;    "that  it  was 
true  that  the  defendant  was  not  there  to  receive  it,  and  had  no 
■lacnt  at  Blood's  Station  to  receive  it,  and  had  no  opportunity 
io  inspect  it  there;  but  that  that  was  a  contingency  he  had  nol 
seen,  and  which  he  might  have   guarded  against    in   the    coiv 

'"it  is  evident  that  the  learned  judge  applied  to  this  case  th. 
rule  as  to  delivery,  which  would  be  applicable  to  a  valid,  writ 
ten  contract  of  sale,  but  which  is  inapplicable  when  the  eontrac 
is  void  bv  the  statute  of  frauds. 

The  effect  of  the  delivery  of  goods  at  a  railway  station,  to  b 
forwarded  to  the  vendee  in  pursuance  of  the  terms  of  a  verb;. 


ISOXAI.   P!U)l'i:U  1  V. 

oimed  tlK'ir  part  of  tlie 
he  deloiulant,  ami  the 
ic  was  dclivi'ied  to  the 

good  <.idcr,  in  mer- 
in  (iiiality  and  all  sul>- 

sainples,  then  he  in- 
t  if  they  found  the  con- 

0  the  place  of  delivery, 
■ontract.  and  passed  the 
.  and  the  plaintiffs  were 
the  wines. 

e  statement  of  facts  ap- 
the  agent  of  the  defcnd- 
ion.  IJiit  this  statement 
Ion  was  the  agent  of  the 
IS  incumbent  upon  them 
m  testifies  to  is  that  the 
lest  bargain  he  could  for 
he  had  any  authority  to 

anv.  Gordon  clearly  had 
It  designate  any  convey- 
tion  to  the  jury  as  to  the 
ss  company  to  accept  the 
hat  if  wiien  the  wine  was 
in  good  order  and  corre- 
s  would  be  entitled  to  a 
c  ground  that  the  parties 
hiimcd  by  the  plaintiffs), 
)f  delivery;  "that  it  was 
to  receive  it,  and  had  no 
,  and  had  no  opportunity 

1  contingency  he  had  not 
ded  against  in  the  con- 
ic applied  to  this  case  the 
pplicable  to  a  valid,  writ- 
[jlicable  when  the  contract 

at  a  railway  station,  to  be 
;  of  the  terms  of  a  verbal 


I 


CAII.KINS    V.    IIKI.I.MAN. 


4"3 


contract  of  sale,  was  very  fully  discussed  in  tlie  case  of  Norman 
V.  IMiillips,  14  Mecs.  and  Wels.  zyj,  and  a  verdict  for  tlie 
plaintiff  founded  njion  such  a  ilelivery.  and  upon  the  additional 
fact  that  tlie  vendor  sent  an  iiuoice  to  tiie  vendee,  which  he 
retained  for  several  weeks,  was  set  aside.  The  ICnglish  author- 
ities on  the  subject  are  reviewed  in  that  case,  and  the  American 
and  I'.nglish  authorities  bearing  upon  the  same  question  are  also 
referred  to  in  the  late  cases  of  Kodgers  v.  I'liillips,  .|o  X.  \'. 
419,  and  Cross  v.  O'Donnell,  44  Id.  661,  4  Am.  Rep,  721. 
Tiie  latter  case  is  cited  by  the  counsel  for  the  plaintiffs  as  an 
authority  for  the  proposition  that  a  delivery  to  a  designated  car- 
rier is  sulVicient  to  take  the  case  out  ol  the  statute  ;  but  it  does 
not  so  ilecide.  It  only  holds  that  the  receipt  and  acceptance 
need  not  be  simultaneous,  but  that  they  may  take  place  at  dif- 
ferent times,  and  that  after  the  purchaser  had  himself  inspected 
and  accepted  the  goods  purchased,  the  delivery  of  them  by  his 
direction  to  a  designated  carrier,  was  a  good  delivery,  and  the 
carrier  was  the  agent  of  the  purchaser  to  receive  them.  Xo 
question,  however,  arises  in  the  present  case  as  to  a  delivery  to 
a  designated  carrier,  as  the  e\  itlence  in  respect  to  the  agreed 
mode  of  delivery  is  conllicting.  and  no  question  of  acceptance 
by  the  carrier  as  agent  for  the  defendant  was  submitted  to  the 
jury. 

The  judge  submitted  to  the  jury  two  questions,  to  which  he 
required  specific  answers. 

First.  Was  the  wine  delivered  at  the  railfoad  station  at  the 
time  agreed  upon  by  the  parties,  and  was  it  then  in  all  respects 
in  good  order,  and  like  the  samples  exhibited  by  the  plaintiff  to 
the  defendant?   and. 

Second.  Was  the  wine  accepted  by  the  defendant  after  it 
reached  his  place  of  business  in  Xew  York? 

The  jury  answered  both  of  these  questions  in  tiic  affirmative, 
and  it  is  now  claimed  that  the  answer  to  the  second  ciuestion 
renders  immaterial  any  error  the  judge  may  have  committed  in 
respect  to  the  effect  of  the  delivery  at  tiie  station. 

It  is  ditlicult  to  find  any  eviilence  justifying  the  submission 
to  the  jury  of  the  second  ([uestion  ;  but  no  exception  was  taken 
to  such  submission.  The  motion  for  a  nonsuit  would  have 
raised  that  point,  were  it  not  for  the  fact  that  there  w  as  evidence 
to  go  to  the  jurv  on  the  claim  of  $52  for  barrels,  and  this  pre- 


404       MOORS  OF  OnTAlN-ING    IITI.K  TO  rKRSONAI.  rUOPERTY. 

eluded  a  nonsuit.     We  think,   however,    that   the  error  in  the 
charge   may   have  misled  the  jury  in  passinjr  upon  the  second 
<,Ufstion;   at  all  events,  it  is  not  impossible  that  it  should  have 
♦lone    so.      Having  been  instructed    that  upon   the  fact  as  they 
found   it   in  respect  to  the  a-ieement  for  a  delivery  at  Hlood's 
Station,  the  title  to  the    goods  had  passed  to  the  defendant  be- 
fore  the   receipt  of   them  at  New  York,  and  that  their  verdict 
."ustbe  for  the  plaintiffs,  thev  may  have  examined  the  question 
of  his  acceptance  of  them  at  New  York  with  less  scr;,tiny  than 
thev  would    have  exercised,   had  they  been  informed  that  the 
result  of  the  case  depended  upon  their  finding  on  that  question. 
\nd  the  construction  of  the  defendant's  acts  and  language  may, 
in  some  degree,  have  been  infiuenced  by  the  consideration  thai 
when  the  wine  arrived  in  New  York  the  title  had,  according  tc 
the  theorv  on  which  the  case  was  submitted  to  them,  passed  t( 
the  defendant,  and  he  had  no  right  to  reject  the  wines.  Further 
more,  we  think  the  judge  erred  in  excluding  the  evidence  of  th^ 
contents  of  the  telegram  which  the  defendant  attempted  to  sen. 
to  the  plaintiffs  immediately  upon  the  receipt  of  the  wine.  If,  a 
was  offered  to  be  shown,  it  stated  that  he  declined  to  accept  th 
wine,  it  was  material  as  part   of  the  res  gestae.     A  bona  fid 
attempt,    immediately  on  the   receipt   and  examination  of  th 
wine,  to   communicate  such  a  message,  was  an  act  on  his  pai 
explaining  and  qualifying  his  conduct  in  receiving  the  wine  int 
his  store  and  allowing  it  to  remain    there.     And    even  thoug 
the  message  never  reached  the  plaintiffs,  it  bore  upon  the  quei 
tion  of  acceptance  by  the  defendant.     The  objection  to  the  ev 
dence  of  the   contents  of  the  telegram  was  not  placed  on  tl 
ground  of  omission  to  produce   the  original,   and  the  judge  , 
his  charge  instructed  the  jury  that  the  attempt  to  send  this  tel 
gram   did  not  affect  the  plaintiffs'  rights,  for  the  reason  that 
was  not  shown  to  have  been  received  by  them,  and  this  was  e 
cepted  to.     In  Norman  v.  Phillips,  14  Mees.  &  Wels.  27?'  tl 
defendant  was  allowed  to  prove  that  on  being  informed  by  tl 
railway  clerk  that  the   goods  were  lying  for  him  at  the  statio 
he  said  he  would  not  take  them,  and  stress  was  laid  upon  t 
fact      Yet  this  statement  to  the  clerk  was  not  communicated 
the   plaintiff.     Evidence   of  an    attempt  to  send  a  message 
*hem  to  the  same  effect,  though  unsuccessful,  would  have  be 
no  more  objectionable  than  the  declaration  to  the  clerk.     T 


T 


KRSONAI.  niOrEIlTY. 

r,    that   the  error  in  the 
passiiifj  upon  the  second 
vsible  that  it  should  have 
at  upon   the  fact  as  they 
for  a  delivery  at  Rlood's 
sscd  to  the  defendant  be- 
rk, and  that  their  verdict 
i-e  examined  the  question 
k  with  less  scrutiny  than 
I  been  informed  that  the 
finding  on  that  question. 
s  acts  and  language  may, 
by  the  consideration  that 
he  title  had,  according  to 
mitted  to  them,  passed  to 
•eject  the  wines.  Further- 
hiding  the  evidence  of  the 
fendant  attempted  to  send 
receipt  of  the  wine.  If,  as 
t  he  declined  to  accept  the 
res  gestae.      A  bona  fide 
t   and  examination  of  the 
Te,  was  an  act  on  his  part 

in  receiving  the  wine  into 
there.  And  even  though 
iffs,  it  bore  upon  the  ques- 

The  objection  to  the  evi- 
am  was  not  placed  on  the 
original,   and  the  judge  in 
;  attempt  to  send  this  tele- 
"hts,  for  the  reason  that  it 
[  by  them,  and  this  was  cx- 
14  Mees.  &  Wcls.  277,  the 
;  on  being  informed  by  the 
ying  for  him  at  the  station, 
id  stress  was  laid  upon  the 
«  was  not  communicated  to 
jmpt  to  send  a  message  to 
nccessful,  would  have  been 
:laration  to  the  clerk.     The 


\  .i 


CALI.KI.NS    v.    IIKLLMAN. 


405 


acts  of  the  defendant  at  the  time  of  the  receipt  of  the  goods,  and 
ins  bona  fide  attempt  to  communicate  to  the  plaintiffs  his  rejec- 
tion of  tlicm  were.  I  think,  material  and  competent  to  rebut  any 
presumption  of    an   acceptance  arising  from  their  retention  by 

liiin. 

The  judge  was  requested  to  instruct  the  jury  that  tlic  tiue 
meaning  of^the  defendant's  letter  of  March  31  was  a  relusal  to 
accept  "he  wine  under  the  contract.  A  careful  examination  of 
that  letter  satisfies  us  that  the  defendant  was  entitled  to  have 
the  jury  thus  instructed.  The  letter  clearly  shows  that  the  <ie- 
fendant  did  not  accept  or  appropriate  the  wines.  After  com- 
phuning  in  strong  language  of  their  (luality  and  condition,  and 
(,f  the  t'ime  and  manner  of  their  shipment,  he  says  to  the  plain- 
tiffs "What  can  be  done  now  with  the  wine  after  it  suffered  so 
much,  and  shows  itself  of  such  a  poor  quality?  1  don't  know 
myself  and  am  waiting  your  advice  and  opinion."  lie  con- 
cludes by  expressing  his  regret  that  their  first  direct  transaction 
-hould  have  turned  out  so  unsatisfactory,  and  by  stating  that  he 
can  not  be  the  sufferer  by  it,  and  he  awaits  their  disposition. 

This  language  clearly  indicates  an  intention  to  throw  upon 
the  plaintiff'ii  the  responsibility  of  directing  what  should  be  done 
with  the  wine,  and  is  inconsistent  with  any  acceptance  or  appro- 
priation of  it  by  the  writer. 

For  these  reasons  the  judgment  should  be  reversed,  and  a 
new  trial  granted,  with  costs  to  abide  the  event. 

All  concur. 

Judgment  reversed. 

CoNSLi-T— Stone  v.  Browning,  51  N.  Y.  211,  6SId.  59S;  llewes  v. 
Tordan.  39  Md.  4/2,  I7  Am.  Rep.  57S;  Hacon  v.  Eccles,  43  Wis.  227 ; 
Gihbs  V.  Benjamin,  45  Vt.  124;  Oilman  v.  Hall,  36  N.  H.  311 ;  Prescott 
V  Locl:e,  51  N.  H.  94.  U  Am.  Rep.  55;  Shindler  v.  Houston,  i  N.  Y. 
-61,  49  Am.  Dec.  316;  Damon  v.  Osl)orn,  i  Pick.  476,  11  Am.  Dec.  779; 
Ric'kev  V.  Tenbrocck,  63  Mo!  563;  McKnight  v.  Dunlop.  5  X.  Y.  537,  55 
Am.  Dec.  37. 


\ 


406       MODES  OF  OIITAININO   Tl  II.K  TO    PKltSONA  I.   IMtUl'Kl!  TV. 


§  75.    Delivery  to  carrier  a  receipt. 

CllOSS  V.  O'DONXELL. 

[44  N.  V.  661 ;  4  Am.  Kep.  721.] 
Court  of  Appcnh  of  Nr-i.'  York,  1871. 

Action  by  W.  S.  and  R.  K.  Cross  a,^ainst  X.  and  IT. 
O'Donnell  to  recover  the  price  of  a  nnm1)er  of  hoops  l)()U},dit 
by  defendant  of  phiintiffs  at  lialtimore  in  1S63.  There  was  no 
meniorandnni  of  the  contract  and  no  part  of  the  i>urchase- 
money  was  paid  by  tlic  pnrchascr.  Hnt  the  pnrchaser  inspected 
and  accepted  the  hoops  and  desij^nated  the  steamer  npon  wliich 
they  shonUl  be  conveved  to  New  Wnk.  The  hoops  (twenty- 
four  thousand  in  number  at  $11.50  per  thousand)  were  thus 
delivered  to  tlie  steamer,  but  she  was  sunk  on  lier  voya<,'e  ii 
the  Chesapeake  Hay.  Tiie  defenihuUs  refused  to  pay  for  tin 
hoops  and  pleaded  the  statute  of  frauds,  \erdict  for  plaintiffs: 
jud^nncnt  thereon  allirmed  at  general  term  ;  defendants  appealct 
to  this  court. 

Emm,,  C. — On  the  trial,  after  proving  that  the  statute  o 
frauds  in  force  in  Maryland  was  substantially  like  our  own,  thi 
defendants  moved  that  the  plaintiffs  be  nonsuited  on  the  grouiu 
that  the  contract  of  sale  was  void  by  that  statute,  and  the  cour 
denied  the  motion;  and  this  ruling  raises  the  only  question  fo 
our  consideration  in  this  case. 

There  was  no  note  or  memorandum  of  the  contract  and  n 
part  of  the  purchase  money  was  paid  by  the  buyers;  and  henc 
unless  the  l)uyers  accepted  and  received  the  hoops,  within  th 
meaning  of  the  statute,  the  contract  was  void.  A  purchase 
may  accept  without  receiving  and  he  may  receive  withoi 
accepting;  and  in  order  to  comply  with  the  statute  of  fraud: 
he  must  Itoth  accept  and  receive.  Here  the  defendants  acceptc 
the  hoops.  One  of  them  saw  them  in  plaintiffs'  yard;  and  tl 
contract  had  reference  to  this  particular  lot  of  hoops  which  tl 
plaintiffs  finally  delivered.  There  is  nothing  in  the  statu 
which  requires  that  the  accepting  and  receiving  shall  be  at  tl 
same  time.     Either  may  precede  the  other;   and  after  both  ha' 


•:i5S()NAI.   ritOl'KltTY. 


S'ELL. 

;p.  721.] 

ross    afjainst   X.   and  IT. 

iiin1)er  of  hoops  Ijouf^lit 

in  1S63.     There  was  no 

0  part  of  the  pmchase- 
It  the  purchaser  iiispecteil 

1  the  steamer  upon  wliich 
rk.  The  hoops  (twenty- 
pcr  tliousaiul)  were  tluis 

sunk  on  her  voyage  in 
s  refused  to  pay  for  tlie 
s.  \'erdict  for  plaintiffs; 
rm;   defendants  appealed 

iving  that  the  statute  of 
antially  like  our  own,  the 
e  nonsuited  on  the  ground 
;hat  statute,  and  the  court 
lises  the  only  question  for 

n  of  the  contract  and   no 

by  the  buyers ;    and  hence 

,ed   the  hoops,   within  the 

was  void.      A   purchaser 

he    may    receive    without 

ith  the  statute  of  frauds, 

•re  the  defendants  accepted 

n  plaintiffs'  yard;   and  the 

lar  lot  of  hoops  which  the 

is    nothing   in   the   statute 

d  receiving  shall  be  at  the 

other ;   and  after  both  have 


cuoss  V.  ()'i>r,N-Ni:i-i.. 


407 


concurred  the  statute  har,  been  complied  witli   and  the  contract 
becomes  operative  and  valid.      McKnight  v.   Duidop.  :^  N.  Y. 
:;,^7.      The   defendants  agreed   to   take    these    identical    hoops, 
an.laftor  receiving    them    and    thus    fully   complying  with  the 
statute  thev  coidd  not  reject  them  upon  any  ol)jecti<.n  to  their 
([uality.      Tlie    onlv    (luestion    then    is.  did   they   receive   tiiem 
within    the    meaning    of    the    statute?     And   this  involves    the 
in(iuiry  whether  in  a  case  where  tin-   purchaser    has    accepted 
the  goods  a  deliverv  t..  a  carrier    designated    by    himsell    will 
answer  the  requirement  of  the  statute  as  to  receiving  the  goods 
by  the  purchaser.      I  am  of  opinion  that  it  will.      It  has  linally 
been  settled,  both  in  this  country  and   in  Kngland,  that  a  deliv- 
ery to  a  general  carrier  not  designated  by  the  purchaser,  is  not 
a  "sullicicnt  compliance  with  the  statute.     (Uodgers  v.  Phillips, 
.10  N.  V.  519.)   And  for  the  best  of  reasons.    In  such  a  case  the 
purchaser  has  done  nothing  beyond  making  the  void   contract. 
He  has  neither  accepted  nor  received    the   goods   himself   nor 
authorized  or  designated  any  agent  to  do   it   for  him.      Hut  in 
this  case  the  purchasers  designated  die  agents  of  the  "Curlew" 
to  receive  and  transport  the  hoops    to   them.     They    were  the 
agents  of  defendants   for   the   purpose   of   receiving   the  hoops 
from  the  plaintiffs. 

It  is  not  necessary  to  determine  in  this  case  that  a  mere  car- 
rier designated  by  the  buyer  can   both    accept   and  receive  for 
him  so  a"s  to  make  a  compliance   with   the   statute;     but    I  can 
tinil  no  reason    founded   upon   principle   or   authority  to  doubt 
that  after  the  buyer  has  accepted  the  article  purchased,  a  carrier 
designated  by  him  to  take  and  transport  it  can  bind  him  as  his 
acrent  by  receiving  it.      While   there    is   not   upon  this  question 
entire  harmony  in  the  views  of  judges  and  while  the  authorities 
can  not  all  be 'reconciled,  the  general   drift  of  them    is  toward 
the  conclusion  I  have  reached.     2  Tarsons  on   Con.  326;   Out- 
water  v.  Dodge,  6  WeiKl.  397;  The  People  v.  Ilaynes,  i\  Id. 
546;   Glen  V.  Whitaker,    51   Barb.   451;    Spencer  v.  Hale,  30 
Vt.  ^14:   Maxwell  V.  Brown,  39  Me.  98  ;   Hanson  v.  Armitage, 
5  Barn.  iS:  Aid.    S57'     Acebal  v.    Levi,    25   Eng.   C.  L.  170; 
Coats  V.  Chaplain,  43  Id.  831  ;   Morton  v.  Tibbett,  69  Id.  427. 
It  is  said  by  some  writers  that  to  create  such  an  appropriation 
of  the  goods  bv  the  buyer  as  will  answer  the  meaning  attached 
to  the  words  "'accept  and  receive"  in  the  statute  there  must  be 


40S       MODES  OF  OnTAlNlNG  TITLE  TO  riCllSONAI,  I'HOPERTY. 

such  an  actual  delivery  by  the  seller  as  will  destroy  all  lien  fo 
tlie  purchase  price  or  rij,'ht  of  Htoppa,i,'e  i/i  ininsitu.  This  ti 
tlif  full  extent  is  not  true.  The  seller  has  a  lier.  for  the  pur 
chase  price  of  the  j,'uo<ls  while  they  remain  i'l  his  possession 
And  this  lien  he  loses  when  he  voluntarily  parts  with  the  pes 
session,  except  when  he  delivers  them  to  a  carrier.  In  th 
latter  case  his  lien  is  extended  and  lasts,  although  the  title  ha 
passed  to  the  buyer,  until  the  carrier  has  delivered  the  f^'ood 
to  the  actual  possession  of  the  buyer.  This  lien  is  an  arbitrar 
one,  created  by  law.  As  observed  by  Lord  Kenyon  in  Ilod>. 
son  V.  Lay,  7  L.  R.  436,  it  is  "a  kind  of  etiuitable  lien  adopte 
by  the  law  for  the  purpose  of  substantial  justice."  When  th 
seller  retakes  the  property  in  the  exercise  of  this  right  of  sto) 
page,  he  is  not  reinvested  with  the  title  but  simply  placed  i 
the  actual  possession  of  the  goods,  holding  them  as  security  ft 
the  purchase  price. 

The  stoppage  must  be  while  the  goods   are  in  transitu  an 

that  is  usually  when  they   are  not   in   the    actual    possession  ( 

the  buyer  under  such  circumstances  as  not  to  take   away  tl 

right  of  stoppage.     This  right  exists,  although  the  goods  ai 

shipped  upon  the  buyer's  own  vessel  consigned   to  him   at   li 

place  of  residence.     Stubbs  v.   Lund,   7    Mass.   453;   Hsley 

Stubbs,  9  Id.  65 ;  Story  on  Sales,  sec.  336.     The  fact  that  tl 

right  of  stoppage  exists  is  no  evidence  that  both  the  title  ai 

possession   have   not  passed   to   the  buyers.     The  contract 

sale  may  be  in  writing,  part  of  the  purchase  money  may  ha 

been  paid,  and  there  may  have  been  a  part  delivery,  and  yet 

the  seller  consigns  the  goods  by  a   carrier  to  the  buyer,  to 

delivered  to  him  at  the  place   of   their  destination,  the  right 

stoppage  exists.     And  this  may  be  so,  even  if  the  buyer  is  al 

master  of  the  vessel,  and  he  in  person  takes  the  goods  and  loa 

them  upon  his  own  vessel,  provided,  as  in  this  case,  the  scl 

consigns  the  goods  to  the  buyer,    to  be  carried  by  him  to  th 

place  of  destination.     Pars,  on  Mar.  Law,  335,  etc.     Henc( 

hold  that  a  carrier  designated  by   the  buyer  may  receive  I 

goods  purchased  so  as  to  make  a  compliance  with  the  stati 

of  frauds ;   and  this  leads  to  an   affirmance  of  the  judgme 

All  concur.  , 

Judgment  afTirmed  with  coi 

See  note  to  next  case. 


PEUSONAI.  rUOPERTY. 

IS  will  destroy  all  lien  for 
<^c  in  Ininsitu.  Tliis  to 
:r  has  a  lien  for  the  piii- 
remaiii  i'l  his  possession, 
larily  parts  with  the  \w>- 
hem  to  a  carrier.  In  the 
its,  although  the  title  has 
has  delivered  the  goods 
This  lien  is  an  arliitrary 
y  Lord  Kcnyon  in  Ilodg- 
il  of  e(iiiital>lc  lien  adopted 
itial  justice."  When  the 
rcise  of  this  right  of  stop- 
itle  but  simply  placed  in 
)lding  them  as  security  for 

;oods   arc   in  trnnsitii  and 
I  the   actual   possession  of 

as  not  to  take  away  the 
5,   although  the  goods  are 

consigned  to  him  at  his 
1,  7  Mass.  453;  Ilsley  v. 
ic.  336.  The  fact  that  the 
ice  that  both  the  title  and 

buyers.  The  contract  of 
purchase  money  may  have 
1  a  part  delivery,  and  yet  if 
arrjer  to  the  buyer,  to  be 
;ir  destination,  the  right  of 
so,  even  if  the  buyer  is  also 
)n  takes  the  goods  and  loads 
,  as  in  this  case,  the  seller 

be  carried  by  him  to  their 
•.  Law,  335,  etc.  Hence  I 
;he  buyer  may  receive  the 
ompliance  with  the  statute 
firmance  of  the  judgment. 

idgment  afTirmed  with  costs. 


)i;s  Ol-  OBTAINING  TITLF.  TO  I'KKSONAI.   PHOl'lll  IV.        jO^ 


MOI 


§  76.    But  not  an  acceptance. 

ALLARD  V.  GREASERT. 

[61N.  Y.  I.] 

Commission  of  Affcals  of  Ncxv  York^  1874. 

Action  for  goods  solil  and  delivered.  Defendant  firm  orally 
agreeil  with  n  .igcnt  of  plaintiffs  to  buy  by  sample  the  follow- 
ing bill  of  hats  and  caps : 

Ot  case  No.  361,   K  '•<"''•   i^hikl's   Letshorti   sylvans  iit$li 

per  tloz     $  5  50 

Of  case  No.  312,  one  doz.  harvest  hats,  at 4  5° 

Of  case  No.  371,  half  do/.  Panama  hats,  at 28  50  a  doz. 

Of  case  No.  37:,  half  doz.  Panama  hats,  at 36  00  a  doz. 

Of  CIS..'  No.  326,  one  doz.  palm  leaf  hats,  at 2  .S"  »  ''"z- 

Of  case  No.  324,  one  doz.  palm  leaf  hats,  at   3  "^^  "  ''"'=■ 

Of  case  No.  329,  one  doz.  white  Glenwood,  at    15  00  a  doz. 

Of  c.e  No.  159.  one  doz.  black  Alpine,  at 24  ocj  a  doz. 

Of  case  No.  309,  one  doz.  Leg.  harvest,  at  3  25  a  doz. 

The  samples  were  shown  by  the  agent,  m<\  Mic  prices  of  the 
different  styles  named,  and  a  memorandum  made  by  the  agent 
of  the  number  of  each  kind  purchased.  No  memorandum  was 
made  in  writing,  and  signed  by  either  party.  When  the  goods 
were  sent,  by  express,  as  ordered,  defendants  refused  to  receive 
them  because  the  one  dozen  harvest  were  in  some  slight  partic- 
ular different  from  the  samples  shown.  Defendants  moved  for 
a  nonsuit  because  (i)  "that  the  agreement  under  which  the 
plaintiffs  seek  to  recover  is  within  the  statute  of  frauds,  and 
void;  (3)  that  the  order  for  the  goods  constitutes  one  entire 
contract,  and  the  plaintiffs  have  failed  to  fulfill,  on  their  part, 
to  deliver  the  harvest  hats  of  the  description  ordered;  that,  by 
reason  of  said  failure,  the'  defendants  had  a  right  to  refuse  to 
receive  any  of  the  goods  sent."  The  court  nonsuited  plaintiffs 
on  the  last  ground. 

Eaul,  C— The  judge  at  the  circuit  regarde".  '.lis  as  an 
entire  contract  of  sale,  and  not  severable ;  and  it  he  was  right 
in  this,  he  properly  nonsuited  the  plaintiffs  upon  that  ground. 


4K,       MOOKS  nv  OinAIMN.i    11  TI.K  TO   1M:U..UNAK  I'lK.n.lt  1  V. 

If  it  uas  an  c-ntiu-  contnu-t.  Nvithiti  the  meaning  ..f  the  law,  th( 

plaintiffs  n.i.1.1  recover  oulv  bv   showing   entire   perf<.rniance 

l,v  a  full  deliverv  of  all   the   articles    pu.chased.      Mnt   -t  .s  no 

necessary  h^  this  case,  to  determine  whether  this  was  an  entw. 

or  a  severable  contract,  because  the  ilefendants  also  move.l  I.. 

a  nonsuit  upon  the  Kroun.l  that  the  contract   ot    sale   was   vo. 

under  the  statute  of  frauds.     Although  the  did  not  plac 

the  nonsuit  upon  this  ground,  it  may  be  co..    ..ored  here.      ll( 

nonsuited  the  plaintiffs,  and  even    if   he  -ave   a   wron^   reaso 

for  it.  an.l  placed  it  upon  the  wron-  -round,  the  no.isu.t  ma 

be  upheld  upon  any  f,"'>'""l   appea-in-  in  the  case.  ^  Curtis  ^ 

Hubbard,  1  11111,3.^''':   -^im-'r  v.   Canaday.   S3  ^■•   ^-    -'>N    ' 

\m    Kep.  32^,;    Delano  /.  Richardson,  4  Den.  95. 

i:ven  if  this  were  a  severable  contract  so  far  as  relates  to  th 

performance  of  the  same,  within  the  meaninj,'  of  the  statute  . 

frauds  it  is  an  entire  contract.     The  reasons  for  holding  't 

be  such  are  clearly  set  forth  in  Haldey  y.  I'arker,  1  B.  ^^  C  4 

and  Story,  Sales,  sec.  24,.      This,  within  the  meaning  of  t 

statute  of  frauds,  is  a   contract  for   the   sale    of   jjootls   for  tl 

price  of  $5oor  more,  and  as  there  was  no  note  or  memorandu 

or  payment,   the    cpiestion    to   be   determli     1   is,    whether    t 

eoo.ls  Nvere  accepted  and  received  by  the  rs  so  as  to  sat.. 

the  statute.     l?v  the  terms  of  the  contra  goods  were 

be  delivered  to  tlie  Merchants'  Union  Express,  to  be  carried 

the  defendants,  and  they  uere  so  delivered.     It  is  well  scttl 

that  when  there  is  a  valid  contract  of  sale,   a  delivery  to  a  c 

rier,  according  to  the  terms  of  the   contract,   vests  the  title 

the  property  in  the  buyer.     It  was  decided  in  Rodgers  y.  1  li 

lips,  40  N.  Y.  519,  that  a  delivery,   according  to  the  contrr 

to  a  general  carrier,  not  designated  or  selected  by  the  buy 

does  not  constitute  such  a  delivery  and  acceptance  as  to  ans\ 

the  statute  of  frauds.     Hut  it  has  been  held  that  when  the  go. 

have  been  accepted  by  the  buyer,  so  as  to  answer  that  port 

of  the  statute  which  rt-quires  acceptance,  a  delivery  to  a  car 

selected  by  the  buyer  will   answer   that  portion  of   the   stal 

Nvhich  requires  the  buyer  to  receive.     Cross  v.   O'Donnell, 

X    Y    661,  4  Am.  Rep.  721.     So  far  as  I  can  discover,  it 

never  yet  been  decided  in  any  case  that  is  entitled  to  respec 

authority,  that  a  mere  carrier  designated  by  the  buyer  can  \ 

accept  and  receive  the   goods    so    as   to    answer   the    stat 


I'KUsoNAi-  rit')ri;u  I  V. 

■  meaniiiK  "f  tlio  law,  the 
,infj  uiitiii-  pi'ifonnance, 
puichasctl.  Hilt  it  is  not 
/lu'thcr  this  was  an  entiri- 
cfiMulant-^  also  movt-il  for 
onlract  of  sale  was  void 
rh  the  «'iil  ""^  placi- 

he  CO..     .cied  here.      He 
he  ^'ave   a   wroiiR   reason 
jjromul,  the  nonsuit  may 
\<r  in  the  case.     Curtis  v. 

uulay.   S,?  ^'-    '^-    -'J^'    ''^ 
on,  4  Den.  95. 
ract  so  far  as  relates  to  the 
meaninj,'  of  the   statute  of 
reasons  for  holding  it  to 
;y  V.  I'arker,  2  1?.  iVC.  41, 
vithin  the  meaning  of  the 
the   sale   of  goods    for  the 
>s  no  note  or  memoranduni 
L-termlr     1   is,    whether    the 
y  the  vs  so  as  to  satisfy 

intra  goods  were  to 

in  Express,  to  be  carried  to 
livered.     It  is  well  settled 
if  sale,   a  delivery  to  a  car- 
contract,   vests  the  title  to 
lecidcd  in  Rodgers  v.  Phil- 
according  to  the  contract, 
I  or  selected  by  the  buyer, 
and  acceptance  as  to  answer 
een  held  that  when  the  goods 
o  as  to  answer  that  portion 
tance,  a  delivery  to  a  carrier 
that  portion  of   the   statute 
;,     Cross  V.   O'Donnell,  44 
far  as  I  can  discover,  it  has 
that  is  entitled  to  respect  as 
fuated  by  the  buyer  can  both 
as   to    answer   the    statute. 


AM..\H1>    V.   (illi;.\si;|{  r. 


411 


r.cni.    Sales,  124.     The  cases  upon  this  subject   are  cilrd   and 
commented  upon,  and  the  prmciples  ai)plicaMe  to  the  question 
i,re  so  fully  set  forth  in  the  two  recent  cases  above  refcrreil  to 
'lh;.t  no  further  citation  of  authorities  or  extended  di--  ussious  at 
this  time  IS  important.      It  will  be  found  by  an  examination  of 
ihc   mthorities,  that  in  most  of  the  cases  where  a  delivery  to  a 
carrier  has  been  held  to  satisfy  the  statute  of  frauds,  there  had 
been  a  prior  acceptance  of  the  goods  by  the  buver  or  his  a-ent. 
\  buyer  mav  acceiH  and  receivt  through   an  agent  expressly  or 
iuipli^'«llv  appointed  for  that  purpose.      There  is  every  reason 
for  holding  that  a  de-ign^.tcd  carrier  may  receive  for  the  buyer, 
becansehcisexprc'.i,    authorized    to  receive,    and   the  act  of 
receiving  is  a  mere  formal  act  re(iuiring  the  exercise  of  no  dis- 
cretion."  But  there  is  no  reason  for  holding  that  the  buyer  in 
such  case  intende.l  to   clothe   the   ca-rier,   of  whose   agents  he 
mav  know  nothing,  with  authority  to  accept  the  goods,  so  as  to 
conclude  him  as  to  their  (luality.  and  bind  him  to  take  them   as 
a  compliance  with  a  contract  of   which   sucli   agents  can  know 
nothin'-.     This  case  furiushes  as  good  an    illustration   as    any. 
The  goods  were  boxed  ;   the  carrier  could  know  nothing  about 
them"   and  its  agents  had  no  right  to  unpack  and  handle  them. 
Its  sole  dutv  and  auth.n-ity  was  to  receive  and  transport  them, 
lu  sudi  a  case,  it  would  be  quite  absurd  to  hold  that  tiie  carrier 
had  an  implied  authority  from   the  buyer   to   accept  the  goods 
for  him       If  the  buyer  do,  .  not  accept  in  person,  he  must  do  it 
tbrou<'h  an  author!/,  d  agent.      Here  it  is  not  claimed  tliat  there 
was  e'xpress  authority  conferred  upon  the  carrier  to  accept,  and 
the    circumstances   are    not   such    that    such   authority   can  be 

implied. 

Upon   this  last  ground,   therefore,    the  nonsuit  was  proper, 
and  the  judgment  must  be  afiirmed,  with  costs. 

All  concur. 
« 

CoNsuLT-Maxwell  v.  Brown,  39  M'l'  98,  63  Am.  Dec.  6Gy,  Johnson 
V.  Cuttle,  105  M.1SS.  447,  7  Am.  Rep.   545 ;    Fontaine  v.  IJrush   40  Minn. 
,41.  I.  Am.  Rep.  722;  Atherton  v.  Merrell,  :.3  M«s«-  Ui,  =5  Am    Hep 
47;  nausm.-.n  v.  Nye,62lnd.  485,30  Am.   Rep.   197;  Lloy'l  v.  N\  .gl% 
20  G.I.  474,6s  Am.  Dec.  636. 


4i: 


MODES  OF  OBTAINING  TITLE  TO  I'EIISONAL  PUOI'ERTY. 


§  77.    Part  payment. 

EDGERTON  v.  HODGE. 

[41  Vt.  676.] 

Supreme  Court  of  Vermont^  i86g. 

Assumpsit,  which  was  referred  to  a  referee,   who  report 

"That  on  the  30th  day  of  June,   1S64,  the  parties  made 

agreement  by  parol,  by  which  the  defendant  agreed  to  sell 

the  phiintiff  what  new  milk  cheese  he  then  had   on   hand, 

unsold,  amounting  to  975  pounds,  and  the  new  milk  cheese 

should    make   thereafter  during    the    season,   and   the  plaii 

agreed  to  pay  the  defendant  therefor  at  the  rate  of  fifteen  ai 

half  cents  per  pound,  and  every  twenty  days  thereafter  agr 

to  call  at  tht  defendant's  house  in  Dorset,  select  such  chees< 

would  be  fit  for  market,    attend    its   weight  there,  and  pay 

defendant  for  the  cheese  so  selected  and  weighed,  and  then 

defendant  was  to  deliver  the  same  to  the  plaintiff  -it  the  railr 

depot  in  Manchester.      The  day  after  the  above  agreement 

made, the  defendant,  by  his  son,  Albert  Hodge,  wrote  and  sen 

mail  a  letter  to  the  plaintiff  (a  copy  of  which  is  annexed,  d. 

July    I,    1S64,)  depositing  the    same  at  the  postotfice  in  I 

RuiJert,  and  directed  to  the  plaintiff  at  Pawlet,  and  receivec 

him  by  mail  on  the  same  day.     The  next  day,  after  the  rel 

mail  from  Pawlet  to  East  Rupert  had  gone  out,  it  being  on  \ 

urday,  the  plaintiff  enclosed  in  a  letter,  directed  to  the  deft 

ant,  at  East  Rupert,  and  left  it  in  the  postoffice   at  Pawlel 

be  carried  by  mail  to  the   defendant,  the  sum  of  tixty  doll 

(A  copy  of  plaintiff's  letter  is  hereunto  annexed,  and  the  en 

ope  enclosing  the  fifty  dollars  is  postmarked  'Pawlet,  July 

This  letter  of   the   plaintiff  was,   on  the  8th  day  of  July,  il 

handed   to   the  said  Albert  Hodge,  by  the  postmaster  of  ] 

Rupert,  and  it  was  on  the  same  day  carried  by  him  to  the 

fendant,  opened  by  the  said  Albert,  the  fifty  dollars  refusec 

be  received   by   the  defendant,    and  the  letter  of  the  plain 

with  the  fifty  dollars,  and   the  envelope  enclosing  them,  w 

by   mail,  returned  to  the  plaintiff,  with  no  communication 

companying  them  from  the  defendant.     The  plaintiff  rece 


O  PERSONAL  PUOI'EllTY. 


EDGEUTON  V.  HODGE. 


413 


HODGE. 

6.] 

Vermont,  i86g. 

o  a  referee,  who  reported : 
1S64,  the  parties  made  an 
;  defendant  agreed  to  sell  to 
he  then  had  on  hand,  antl 
and  the  new  milk  cheese  he 
le  season,  and  the  plaintiff 
jr  at  the  rate  of  fifteen  and  a 
enty  days  thereafter  as;reed 
Dorset,  select  such  cheese  as 
3  weight  there,  and  pay  the 
J  and  weighed,  and  then  the 
o  the  plaintiff  -it  the  railroad 
ter  the  above  agreement  was 
)ert  Hodge,  wrote  and  sent  by 
Y  of  which  is  annexed,  dated 
me  at  the  postotfice  in  East 
tf  at  Pawlet,  and  received  bv 
le  next  day,  after  the  return 
ad  gone  out,  it  being  on  Sat- 
etter,  directed  to  the  defend- 
the  postoffice  at  Pawlet,  to 
uit,  the  sum  of  fixty  dollars, 
unto  annexed,  and  the  envel- 
ostmarked  'Pawlet,  July  4.') 
m  the  Sth  day  of  July,  1S64, 
e,  by  the  postmaster  of  East 
lay  carried  by  him  to  the  de- 
t,  the  fifty  dollars  refused  to 
nd  the  letter  of  the  plaintiff, 
^elope  enclosing  them,  were, 
,  with  no  communication  ac- 
ant.     The  plaintiff  received 


I 


the  so  enclosed  wrapper,  money,  and  letter,  on  the  9th  of  July, 
1S64,  and  kept  the  same  fifty  dollars  for  six  months  thereafter. 
A  daily  mail    is   carried  between  the  postofiices  of  Pawlet  and 
East  Rupert,  a  distance  of  six  miles.     On  the  20th  day  of  July, 
1S64,   the   plaintiff  sent  word  to  the  defendant  to  deliver  what 
cheese  he  had  fit  for  market  to  the  depot  in  Manchester.     The 
defendant  replied  to   the  messenger  that  he  had  no  cheese  for 
the  plaintiff.    No  other  communication  ever  took  place  between 
the  parties  in  regard  to  the  cheese  after  the  return  of  the  money 
as  above  stated  until  this  suit  was  brought.    The  defendant  sold 
all  his  cheese  to  other  parties,  making  his  first  sale  on  the  26th 
day  of  July,   1S64.     If   the  court  shall  be  of  opinion  that  from 
the  foregoing  facts  the  plaintiff  is  entitled  to  recover,  and  that 
the  rule  of  damages  should  be  the  New  York  market  price  for 
cheese  for  the   season  of  1S64,  deducting  the  freight  and  com- 
mission, then  I  find  due  the  plaintiff  $411.01.     If    the    current 
price  in  the  country,  paid  by  purchasers  and    sent  by  them   to 
market,  is  to  be  the  rule,  then  I  find  due  the  plaintiff  the  sum 

of  $-,06.32." 

"Dorset,  July  i,  1864.  Mr.  Edgerton:  Sir:— Accordmg  to 
our  talk  yesterday  you  bought  my  cheese  for  the  season.  I  shall 
stand  to  it,  but  shall  want  you  to  pay  me  fifty  dollars  to  bind  it. 
I  spose  there  is  nothing  holding  unless  there  is  money  paid. 
I  do  not  wish  you  to  think  I  wish  to  fly  from  letting  you  have 
it  so  that  it  is  sure.  I  will  pay  you  interest  on  the  money  until 
the  last  cheese  is  delivered.  Yours  in  haste. 

J.  H.  C.  Ilodge,  per  A.  H." 
"Pawlet,  July  2,  1864.     Mr.  Hodge:     Dear  Sir:— I  enclose 
you  fifty  dollars   to  apply  on  your  dairy  of  cheese  as  you  pro- 
posed.    Yours  truly,  S.  Edgerton." 

The  court  at  the  March  term,  1S6S,  Pierpoint,  C.  J.,  presid- 
ing, rendered  judgment  on  the  report  that  the  plaintiff  recover 
of^'the  defendant  the  smaller  sum  reported  by  the  referee,  and 
for  his  costs,  to  which  the  defendant  excepted. 

Wilson,  J.— The  parol  agreement,  entered  into  by  the  par- 
tics,  June  30,  being  for  the  sale  of  goods,  wares,  and  mer- 
chandise for  the  price  of  forty  dollars  and  more,  is  withui  the 
statute  of  frauds,  and  inoperative,  unless  taken  out  of  the  stat- 
ute by  the  subsequent  acts  of  the  parties.     It  is  claimed  by  the 


414       Monies  OF   OnTAIMNd  TITLE  TO   rKUSOXAI.   PIJOrKKTV. 

plaintiff  that  the  defendant's  letter  under  date  of  July  i,  and 
the  depositing  of  the  plaintiff's  letter  with  the  fifty  dollars  in  the 
postotVice  on  thi-  second  of  that  month,  constitute  a  payment  oi 
part  of  the  purchase  money  within  the  meaninj;  of  the  statute. 
It  will  be  observed  that  when  those  letters  were  written,  no 
binding  agreement  had  been  concluded.  The  defendant,  in  his 
letter  of  July  i,  says:  "According  to  our  talk  yesterday,  you 
bought  mv  cheese  for  the  season.  1  shall  st.md  to  it,  but  shall 
want  fifty  dollars  to  bind  it."  By  that  letter  the  plaintiff  was 
notiiicd  that  he  could  make  the  bargain  l>inding  upon  himsell 
as  well  as  the  defendant,  by  paying  to  the  defendant  the  sun' 
demanded  for  that  purpose.  The  plaintiff  on  the  second  day  oi 
Julv  inclosed  fifty  dollars  in  a  letter,  directed  to  the  defendant 
;md  deposited  it  in  the  postoflice,  which  letter  was  delivered  tr 
the  defendant  on  the  eighth  of  that  month.  lie  did  not  accep 
the  money,  but  returned  it  to  the  plaintiff.  It  is  clear  that  tlu 
act  of  depositing  the  letter  and  the  money  in  the  po?tofhce  wa; 
not  a  pavment  to  the  defendant.  His  letter  did  not  direct  th< 
monev  to  be  sent  by  mail;  it  contains  nothmg  that  would  indi' 
cate  that  the  defendant  expected  the  plaintiff  would  reply  In 
letter,  or  accept  the  proposition  by  depositing  the  money  in  thi 
postotVice;  and  the  fact  that  the  defendant  by  letter  offered  t( 
allow  the  plaintiff  to  perfect  the  agreement,  by  paying  part  o 
the  purchase  money,  did  not  authorize  or  invite  the  plaintiff  t( 
send  the  money  by  mail,  or  make  the  mail  the  defendant's  car 
rier  of  the  money.  The  language  of  the  defendant's  letter  is 
'T  shall  want  you  to  pay  me  fifty  dollars  to  bind  it,"  that  is,  t< 
make  it  a  valid  contract. 

The  money,  when  deposited  in  the  postoflice,  belonged  t( 
the  plaintiff;  it  belonged  to  the  plaintiff  while  being  carried  \r 
mail  to  the  defendant,  and  it  would  continue  the  property  of  thi 
plaintiff  unless  accepted  by  the  defendant.  The  plaintiff  tool 
the  risk  not  only  of  the  safe  conveyance  of  the  money  to  tiv 
defeu'.hint,  but  also  as  to  the  willingness  of  the  defendant  ti 
accept  it.  The  defendant's  letter,  not  constituting  such  a  not 
or  memorandum  of  the  agreement  as  the  statute  required,  left  i 
optional  with  the  defenilant  to  accept  or  refuse  part  paymen 
when  offered  to  him,  the  same  as  if  the  defendant  had  sent  t 
the  jilaintiff  a  verbal  communication  of  the  same  import  as  th 
defendant's    letter.     A  point  is  made  by  counsel  as  to  whethe 


-T 


'ERSOXAI,  nj(M'r.UTV. 

mder  ilate  of  July  i,  and 
•ith  the  Hfty  dollars  in  the 
,  constitute  a  j)ayment  of 
i  meaning  of  the  statute, 
letters  ware  wiittcn.  no 
I.  The  defendant,  in  his 
:>  our  talk  yesterday,  }ou 
■hall  st.md  to  it,  hut  shall 
at  letter  the  plaintiff  was 
ain  binding  upon  himself 
to  the  defendant  the  sum 
ntiff  on  the  second  day  or 
directed  to  the  defendant 
ch  letter  was  delivered  to 
onth.  lie  did  not  accept 
itiff.  It  is  clear  that  tiie 
aney  in  the  po?toiHce  was 

>  letter  did  not  direct  the 

>  nothing  that  would  intli- 
j  plaintiff  would  reply  hy 
positing  the  money  in  the 
nilant  by  letter  offered  to 
ement,  by  paying  part  of 
J  or  invite  the  plaintiff  to 

mail  the  defendant's  car- 
the  defendant's  letter  is: 
ars  to  bind  it,"  that  is,  to 

2  postofHce,  belonged  to 
tiff  while  being  carried  by 
ntinue  the  projjerty  of  the 
lant.  The  plaintiff  took 
^ancc  of  the  money  to  the 
igness  of  the  defendant  to 
it  constituting  such  a  note 
the  statute  required,  left  it 
pt  or  refuse  part  payment 
the  defendant  had  sent  to 
ji  the  same  import  as  the 
;  by  counsel  as  to  whether 


EDOEirrov  V.  iioixjk. 


4'5 


tiic  money  was  conveyed  and  delivered  or  offered  to  the  delend- 
ant,  within  a  reasonable  time  after  his  letter  was  recei\ed  by 
the  plaintiff,  but  it  seems  to  ns  that  the  time  the  money  was 
offered  is  not  material.  We  think,  even  if  the  plaintiff  had 
gone  immediately  after  receiving  the  defendant's  letter,  and 
offered  and  tendered  to  him  the  fifty  dollars,  the  defendant 
would  have  been  under  no  legal  obligation  to  accept  it.  The 
mere  offer  of  the  defendant  to  receive  the  money  would  not 
estop  him  from  refusing  to  accept  it ;  but  in  order  to  take  the 
I  case  out  of  the   operation  of  the  statute,  it  recpiired  the  agree- 

ment or  consent  of  both  parties,  as  to  payment  by  the   plaintiff 
;  and  acceptance  of  it  by  the  defendant.     Upon  the  facts  <.f  this 

I  case,  we  think  the  rights  of  the  parties  rest  upon  and  are  to  be 

I  determined   by   the    verbal  agreement  entered  into  by  them  on 

I  the  thirtieth    of   June,    and  that   their   subseciuent  attempts  to 

J  make  that  agreement  a  valid  contract  can  not  aid  the  plaintiff. 

I  The  statute  provides  that  "no  contract  for  the  sale  of  any  goods, 

I  wares,  or  merchandise,  for  the  price  of  forty  tlollars  or  more, 

I  shall  be  valid,  unless  the    purchaser  shall    accept   and   receive 

I  part  of  the  goods  so  sold,  or  shall  give  something  iu  earnest  to 

bind  the  bargain,  or  in  part  payment,  or  unless  some  note  or 
memorandum  of  the  bargain  be  made  in  writing,  and  signed  by 
the  party  to  be  charged  thereby,  or  by  some  person  thereunto 
liy  him  lawfully  authorized." 

The   very   language  of  the  statute  above  quoted  implies  that 
in  whichever  wav  the    parties  verlially  agree  or    propose   that 
contract  for  the  sale  of  goods,  wares,  or  merchandise,   for  the 
price   of   $40  or  more,  shall  be  made  exempt  from  the  statute 
of  frauds,  whether  it  be  by  the  purchaser  accepting  and  receiv- 
ing part  of  the  goods  so  sold,  by  giving  something  in  earnest  to 
bind  the  bargain,  or    in  part  payment,  or  by  making  a  note  or 
memorandum  of  the  bargain,  it  must  be  done,  if  done  at  all,  by 
the  consent  of  both  parties.     It  is  obvious  that  it  would  require 
the  consent  of  the  purchaser  to  accept  and   receive  part  ol   the 
goods,  and  he  could  not  receive  them  unless  by  consent  of  the 
seller;  the   purchaser   could   not   give  something  in  earnest  to 
bind  the  bargain,  or  in   part  payment,  unless  the  seller  accept 
and  receive  it;  nor  could  a  note  or  memorandum  of  the  bargain 
be   made   and   signed  unless  by  the  consent  of  the  party  to  be 
charged  thereby.    A  valid  contract  is  an  agreement  or  covenant 


4l6      MODES  OF  OBTAIXING   Tl  IM-:  TO  PERSONAL  PROPERTY. 

between  two  or  more  persons,  in  which  each  party  binds  hin 

self  to   ilo  or  forbear  some   act;   and  each  acquires  aright  t 

what  the  other   promises ;   but  if  the  parties,  in  making  a  coi 

tract  lii<e  the  present  one,  omit  to  do  what  the  statute  requin 

to  be  done  to  make  a  valid  contract,  it  would  require  the  coi 

sent  of  both  parties  to  supply  the  thing  omitted.     Suppose 

had  been  one  stipulation  of  the   verbal  agreement  on  the  thi 

tieth  of  June   that  the  plaintiff  should  give  and  the  defenda 

receive  something  in  earnest  to  bind  the  bargain,  and  in  purs 

ance  of  such  stipulation  the  plaintiff  had  then  offered  to  give 

pay  the  amount  so  stipulated,  and  the  defendant  had  refused 

receive   it,   saying  that  he  preferred  not  to  receive  any  mon 

until  he  had  delivered  the  whole  or  part  of  the  property,  or  h 

refused  to  accept  the  money   so  offered,  or  do  any  other  act 

bind  the  bargain,  without  giving  any  reason  for  such  refusal, 

would  be  evident  that  he  did  not  intend  to  make  a  binding  co 

tract.     But  the  fact  that  he  had  made  such  verbal  agreement 

receive  something  or  to  do  some  other  act  to  bind  the  barga 

and  that  the   plaintiff  was  ready  and  offered  to  comply  on  1 

part,  would  not  take  the  agreement  out  of  the  statute.   Averl 

stipulation  to  give  and  to   receive  something  in  earnest  to  bi 

the  bargain  or  in  part  payment,  or  a  verbal  promise  to  mak( 

note  or  memorandum  in  w  riting  necessary  to  exempt  the  agn 

ment  from  the  operation  of  the  statute,   is  as  much   within  I 

statute  of  frauds  as  is   the   agreement   or    contract  taken   ai 

whole ;   and  a  note  or  memorandum  in  relation  to  giving  son 

thing  in  earnest  to  bind  the  bargain,  or  in  part  p.iyment,  wh 

is  insufficient  of  itself  to  take  the  contract  out  of  the  statute, 

also  insullicient  to  make  the  contract  binding  upon  either  pai 

The  judgment  of  the  county  court  is  reversed  and  judgm 

for  the  defendant  for  his  costs. 

Consult— Howe  V.  Ilayward,  loS  Mass.  54;  Krohn  v.  Bautz,  68  1 
277;  Coltrell  V.  Stephens,  10  Wis.  422;  Hooker  v.  Knab,  26  Wis.  ■ 
Artcher  v.  Zeh,  5  Hill,  205;  Hunter  v.  Wetzell,  57  N.  Y.  375,  18  I 
Kep.  508;  Gault  v.  Brown,  48  N.  H.  189. 


i 


PERSONAL  PROPERTY. 

ich  each  party  binds  him- 
d  each  acquires  a  right  to 
?  parties,  in  making  a  con- 

0  what  the  statute  requires 
it  would  require  the  con- 

hing  omitted.  Suppose  it 
bal  agreement  on  the  thir- 
iild  give  and  the  defendant 
the  bargain,  and  in  pursu- 
had  then  offered  to  give  or 
le  defendant  had  refused  to 

1  not  to  receive  any  money 
■)art  of  the  property,  or  had 
red,  or  do  any  other  act  to 
1  reason  for  such  refusal,  it 
end  to  make  a  binding  con- 
le  such  verbal  agreement  to 
her  act  to  bind  the  bargain, 
id  offered  to  comply  on  his 
out  of  the  statute.   A  verbal 
omcthing  in  earnest  to  bind 
I  verbal  promise  to  make  a 
:essary  to  exempt  the  agree- 
ite,   is  as  much   within  the 
;nt   or   contract  taken  as  a 
I  in  relation  to  giving  some- 
,  or  in  part  payment,  which 
ontract  out  of  the  statute,  is 
;t  binding  upon  either  party, 
irt  is  reversed  and  judgment 


iss.  54;  Krohn  v,  Bautz,  68  Ind. 
;  Hooker  V.  Knab,  26  Wis.  511; 
^  Wetzell,  57  N.  Y.  375,  18  Am. 


MODES  QV   OnTAlNlNG   TITLE   TO  PERSONAL   PUOPICKTY, 


•P7 


it  78.    The  note  or  memorandum— Must  show   complete 
contract— Signing  by  broker  as  agent. 

BUTLER  V.  TIIOMSOX. 

[92  U.  S.  4i^.] 
Supreme  Court  of  the  United  States,  /^/j. 

Error  to  the  circuit  court  of  the  United  States  for  the  south- 
ern district  of  New  York. 

Mr.  Justice  Hunt  delivered  the  opinion  of  the  court. 

The  plaintiff  alleged  that  on  the  eleventh  day  of  July,  1867, 
he  bargained  and  sold  to  tho  defendants  a  (inantity  of  iron 
thereafter  to  arrive,  at  prices  named,  aiid  that  the  defendants 
agreed  to  accept  the  same,  and  pay  the  purchase  moiicy  there- 
for; that  the  iron  arrived  in  due  time,  and  was  tendered  to  the 
defendants,  who  refused  to  receive  and  pay  for  the  same ;  and 
that  the  plaintiff  afterward  sold  the  same  at  a  loss  of  $6,581, 
which  sum  he  requires  the  defendants  to  make  good  to  him. 
The  defend.ints  interposed  a  general  denial. 

Upon  the  trial,  the  case  came  down  to  this:  Tiie  plaintiff 
emploved  certain  brokers  of  the  city  of  New  York  to  make  sale 
for  him  of  the  expected  iron.  The  brokers  made  sale  of  the 
same  to  the  defendants  at  twelve  and  three  fourths  cents  per 
pound  in  gold,   cash. 

The  following  memorandum  of  sale  was  made  bv  the  brokers. 


VIZ. 


"New  York,  July  10,  1S67.  Sold  for  Messrs.  Butler  k 
Co.,  Boston,  to  Messrs.  A.  A.  Thomson  ^:  Co.,  New  York, 
seven  hundred  and  five  (705)  packs  first-quality  Russia  sheet- 
iron,  to  arrive  at  New  York,  at  twelve  and  three-quarters  (1234  ) 
cents  per  pound,  gold,'  cash,  actual  tare.  Iron  due  about 
September  i,  '67.     White  &  Ila/.zard,  Brokers." 

The  defendants  contend  that,  under  the  statute  of  frauds  of 
the  state  of  New  York,  this  contract  is  not  obligatory  upon 
them.  The  judge  before  whom  the  cause  was  tried  at  the 
circuit  concurred  in  this  view,  and  ordered  judgment  for  the 
defendants.  It  is  from  this  judgment  that  the  n-:  /^r^t  review 
is  taken, 

27 


4l8       MODES  OF  OBTAINING  TITLE  TO  PEUSON'AL  rUOl'ERTY. 


The  provision  of  the  statute  of  New  York  upon  which  th 
question  arises  (3  R.  S.,  p.  136,  sec.  3)  is  in  these  words: 

'•Every  contract  for  tiie  sale  of  any  goods,  chattels,  or  thinj 
in  action,  for  the  price  of  fifty  dolhirs  or  more,  shall  be  voit 
unless  (i)  a  note  or  memorandum  of  such  contract  be  made  i 
writing,  and  be  subscribed  by  the  parties  :o  be  charged  thereb\ 
or  (3)  unless  the  buyer  shall  accept  and  receive  part  of  sue 
goods,  or  the  evidences,  or  some  of  them,  of  such  things  i 
action;  or  (3)  unless  the  buyer  shall  at  the  time  pay  some  pa 
of  the  purchase  money." 

The  eighth  section  of  the  same  title  provides  that  "evei 
instrument  required  by  any  of  the  provisions  of  this  title  to  I 
subscribed  by  any  party  may  be  subscribed  by  the  lawful  agei 
of  such  party." 

There  is  no  pretense  that  any  of  the  goods  were  accepte 
and  received,  or  that  any  part  of  the  purchase  money  was  pai( 
The  question  arises  upon  the  first  branch  of  the  statute,  that 
memorandum  of  the  contract  shall  be  made  in  writing,  and  1 
subscribed  by  the  parties  to  be  charged  thereby. 

The  defendants  do  not  contend  that  there  is  not  a  sulRciei 
subscription  to  the  contract.  White  &  llazzard,  who  signt 
the  instrument,  are  proved  to  have  been  the  authorized  agen 
of  the  plaintiff  to  sell,  and  of  the  defendants  to  buy;  and  the 
signature,  it  is  conceded,  i  signature  both  of  the  defendan 

and  of  the  plaintiff. 

The  objection  is  to  the  sufficiency  of  the  contract  itself.    Tl 
v^rittcn  memorandum  recites  that  Butler  &  Company  had  sold  tl 
iron  to  the  defendant  at  a  price  named ;  but  it  is  said  there 
no  recital  that  the  defendants  had  bought  the  iron.     There  is 
contract  of  sale,  it  is  argued,  but  not  a  contract  pf  purchase. 

As  we  understand  the  argument,  it  is  an  attack  upon  tl 
contract,  not  only  that  it  is  not  in  compliance  with  the  statu 
of  frauds,  but  that  it  is  void  upon  common  law  principles.  T 
evidence  required  by  the  statute  to  avoid  frauds  and  perjuri 
— to  wit,  a  written  agreement — is  present.  Such  as  it  is,  t 
contract  is  sufficiently  established,  and  possesses  the  eviden 
of  its  existence  required  by  the  statute  of  frauds. 

The  contention  would  be  the  same   if  the   articles  sold  h; 
not  been  of  the  price  nam-jd  in  the  statute,  to  wit,  the  sum 
fifty  dollars. 


PEUSOVAL  raOPEIlTV. 

;\v  York  upon  which  the 
1  3)  is  in  these  words: 
,'  goods,  chattels,  or  things 
i  or  more,  shall  be  void, 
:  such  contract  be  made  in 
ties  ;:o  be  charged  thereby  ; 

and  receive  part  of  such 
[  them,    of   such   things  in 

at  the  time  pay  some  part 

;itle  provides  that  "every 
avisions  of  this  title  to  be 
cribed  by  the  lawful  Jigent 

the  goods  were  accepted 
purchase  money  was  paid, 
inch  of  the  statute,  that  a 
I  made  in  writing,  and  be 
;ed  thereby. 

it  there  is  not  a  sufficient 
&  llazzard,  who  signed 
een  the  authorized  agents 
endants  to  buy ;  and  their 
ture  both  of  the  defendants 

of  the  contract  itself.  The 
ler  «&  Company  had  sold  the 
:;d ;  but  it  is  said  there  is 
ught  the  iron.  There  is  a 
t  a  contract  pf  purchase, 
it  is  an  attack  upon  the 
mpliance  with  the  statute 
iimon  law  principles.  The 
ivoid  frauds  and  perjuries 
resent.  Such  as  it  is,  the 
nd  possesses  the  evidence 
te  of  frauds. 

le  if  the  articles  sold  had 
tatute,  to  wit,  the  sum  of 


BUTKKR    V.   THOMSON'. 


419 


Let  us  examine  the  argument.     Blackstone's  definition  of  a 
sale  is  "a  transmutation  of  property  from  one  man  to  another 
in   consideration  of  some  price."     2  Bl.  446.     Kent's  is,  "a 
contract   for   the    transfer   of    property    from     one    person    to 
another."     2  Kent,  615.      Bigelow,  C.  J.,   defnics  it  in  these 
words:      "Competent  parties  to  enter  into  a  contract,  an  agree- 
ment to  sell,   the   mutual   assent  of  the  parties  to  the  suliject- 
matter  of  the  sale,  and  the  price  to  be  paid  therefor."     Gard- 
ner v.  Lane.    12   Allen,   39,  43.      A   learned    author   nays,  "If 
any  one  of  the  ingredients  be  wanting,  there  is  no  sale."     At- 
kinson on  Sales,  5;   Benjamin  on  Sales,   p.   i,  note,  and  p.  2, 
says;     "To  constitute  a  valid  sale  there  must  be   (i)  parties 
competent  to  contract;     (2)  mutual   assent;   (3)   a  thing,  the 
absolute  or  general  property  in  which  is  transferred  from  the 
seller  to  the  buyer;   (4)  a  price  in  money,  paid  or  promised." 
How,  then,  can  there  be  a  sale   of  seven   hundred   and  five 
packs   of   iron,    unless  there  be  a  purchase  of  it?     How  can 
there  be  a  seller,  unless  there  be  likewise  a  purchaser.     These 
authorities  require  the  existence  of  both.     The  essential  idea  of 
a  sale  is  that  of  an  agreement  or  meeting  of  minds  by  which   a 
title  passes  from  one,  and  vests  in  another.     A  man  can  not 
sell  his  chattel  by  a  perfected  sale,  and  still  remain  its  owner. 
There  may  be  an  offer  to  sell,   subject  to   acceptance,  which 
would  bind  the  party  offering,   and   not  the  other  party  until 
acceptance.     The  same  may  be  said  of  an  optional  purchase 
upon  a  sufficient  consideration.     There  is  also  a  class  of  cases 
under  the  statute  of  frauds  where  it  is  held  that  the  party  who 
has  signed  the  contract  may  be   held   chargeable  upon  it,  and 
the  other  party,  who  has  not  furnished   that  evidence  against 
himself,  will  not  be  thus  chargeable.     Unilateral  contracts  have 
been  the  subject  of  much  discussion,  which  we  do  not  propose 
here  to  repeat.     In  Thornton  v.   Kempster,  5  Taunt.  788,  it  is 

said : 

"Contracts  may  exist,  which,  by  reason  of  the  statute  of 
frauds,  could  be  enforced  by  one  party,  although  they  could 
not  be  enforced  by  the  other  party.  The  statute  of  frauds  in 
that  respect  throws  a  difficulty  in  the  way  of  the  evidence.  The 
objection  does  not  interfere  with  the  substance  of  the  contract, 
and  it  is  the  negligence  of  the  other  party  that  he  did  not  take 


J\20       MODES  OF  OnTAIMNT.   TITir.  TO  I'KHSONAI.  IMiOl'lC  HI  Y. 

care  to  obtain  anil  preserve  admissible  evitlencc  to  enable  liin- 
self  also  to  enforce  it." 

Tl)c  statute  of  29  Car.  II..  c.  3,  on  which  this  decision  : 
based,  that  "no  contract  for  the  sale  of  goods,  wares,  and  mci 
chandisc.  for  the  price  of  ten  pounds  sterling,'  or  upward,  sha 
be  allowed  to  be  good  except  the  buyer,"  etc.,  is  in  lc<jal  effei 
the  same  as  tiiat  of  the  statute  of  New  York  already  cited.  Si 
Justice  V.  Lan<,^  42  N.  Y.  493,  that  such  is  the  effect  of  tl 
statute  of  New   York. 

Tlie  case  before  us  does  not  fall  within  this  class.  Thci 
the  contract  is  si<:;ned  by  one  party  only;  here  both  have  si<jnc 
the  paper;  and,  if  a  contract  is  created,  it  is  a  mutual  on( 
Both  are  liable,  or  neither. 

Under  these  authorities,  it  seems  clear  that  there  can  be  r 

sale  unli-ss  there  is  a  purchase,   as  there   can   be    no   purcha 

unless  there  be  a  sale.      When,  therefore,  the  parties  mutual 

cerlitv  and  declare  in  writing  that  Butler  &  Company  have  so 

a  certain  amount  of  iron  to  Thomson  &  Company  at  a    pri 

named,  there    is    included    therein  a  certificate  and  declaratii 

that  T  homson  <.V  Company  have  bought  the  iron  at  that  pric 

In  Newell  v.  Radford,  L.  R.  3  C.  P.  52,  the  memorandu 

was  in  these  words:      "Mr.  II.,  33  sacks  culasses  at  39s.,  2I 

lbs.    to    wait    orders;"     signed,    "John    Williams."      It    w 

objected  that  it  was  impossible  to  tell  from  this  memorandu 

which  party  was  the  buyer,  and  which   was   the   seller.     Pat 

proof  of  the  situation  of  the  parties  was  received,  and  that  W 

liams  was  the  defendant's  agent,   and  made    the    entry   in  t 

plaintiff's   books.     In    answer   to  the  objection  the  court  sn 

"The  plaintiff  was  a  baker,  who  would  require  the  flour,  a 

the  defendant  a  person  who  was  in  the  habit  of  selling  it;"   a 

the  plaintiff  recovered.     It  may  be  noticed,  also,  that  the  me 

orandum  in  that  case  was  so  formal   as  to  contain  no  woi 

either  of  purchase  or  sale  ("Mr.  H.,   32  sacks  culasses  at  31 

3S0  lbs.  to  wait  orders");  but  it  was  held  to  create  a  go 

contract  upon  the  parol  evidence  mentioned. 

The  subject  of  bought  and  sold  notes  was  elaborately  d 
cussed  in  the  case  of  Sivewright  v.  Archibald,  6  Eng.  L. 
Eq.  3S6;  S.  C,  17  Q.  B.  103;  Benj.  on  .Sales,  p.  224,  s^ 
390.  There  was  a  discrepancy  in  that  case  between  the  bouj 
and  sold  notes.     The  sold  note  was  for  a  sale  to  the  defend 


I'KHSONAI.  J'HOl'Kiny. 

c  evidence  to  enable  liim- 

on  wliich  this  decision  is 
of  goods,  wares,  and  mcr- 

sterlin-^  or  upward,  sliall 
,'cr,"  etc.,  is  in  lc<jal  effect 
V  Yorii  already  cited.    See 

such   is  the   effect  of  the 

within  this  class.  There 
nly ;  here  both  have  si},Micd 
eated,  it  is  a  mntiial  one. 

lear  that  there  can  be  no 
here   can   be    no   purchase 
jforc,  the  parties  mutually 
itler  &  Company  have  sold 
n  iS:  Company  at  a   price 
,  certificate  and  declaration 
lUfjht  the  iron  at  that  price. 
.  P.  52,  the  memorandum 
5acks  culasses  at  39s.,  280 
ohn    Williams."      It    was 
11  from  this  memorandum 
ch   was   the   seller.     Parol 
ivas  received,  and  that  Wil- 
iid  made    the    entry  in  the 
le  objection  the  court  say, 
juld  require  the  flour,  and 
he  habit  of  selling  if,"   and 
noticed,  also,  that  the  meni- 
al  as  to  contain  no  words 
,   32  sacks  culasses  at  39s. 
,vas  held  to  create  a  good 
entioned. 

notes  was  elaborately  dis- 
.  Archibald,  6  Eng.  L.  & 
nj.  on  Sales,  p.  224,  sec. 
hat  case  between  the  bought 
.  for  a  sale  to  the  defendant 


.BUTMCU    V.   nioMsoV. 


4:1 


of  '-50"  tons  Messrs.  Huulop,  Wilson  ^:  Co.'s  pi-,'-ir()n."  The 
bought  note  was  for  "5"<»  to'is  of  Scotch  pig-iron."  Tlio 
diversity  lietween  the  l)ought  and  sold  notes  was  lul.l  to  avoid 
the  coiUract.  It  was  iield  that  the  subject  of  the  coiitrait  was 
not  agreed  upon  between  tlie  parties.  It  appeared  tiien'.  and 
tlie  circumstance  is  commented  on  by  Mr.  .lustice  I'attesoii, 
that  the  practice  is  to  deliver  the  bought  note  to  the  buyer,  and 
the  sold  note  to  tlie  seller.  He  says.  '•Kach  of  tliem,  in  the 
language  used,  purports  to  be  a  representation  by  the  broUer 
to  the  person  to  whom  it  is  delivered,  of  wliat  he.  the  l)r()ker, 
has  done  as  agent  for  that  person.  Surely  the  bouglit  note 
delivered  to  the  buyer  can  not  ho  saiil  to  be  the  memorandum 
of  the  contract  signed  by  the  buyer's  agent,  in  order  that  he 
might  be  bouid  thereby;  for  then  it  would  have  been  ileliv- 
cred  to  the  seller,  not  to  the  buyer,  and  vice  versa  as  to  the  sold 

note." 

The  argument  on  which  the  decision  below,  of  the  case  we 
are  considering,  was  based,  is  that  the  contract  of  sale  is  dis- 
tinct from  the  contract  of  purchase;  that,  to  charge  the  pur- 
cliaser,  the  suit  should  be  brought  upon  the  bought  note ;  and 
that  the  purchaser  can  only  be  held  where  his  agent  has  signed 
and  delivered  to  the  other  party  a  bought  note— that  is,  an 
instrument  expressing  that  he  has  bought  and  will  pay  for  the 
articles  specitled.  Mr.  Justice  Patteson  answers  this  by  the 
statement  that  the  bought  note  is  always  delivered  to  the  buyer, 
and  the  sold  note  to  the  seller.  The  plaintiff  here  has  the  sig- 
nature of  both  parties,  and  the  counterpart  delivered  to  him, 
and  on  which  he  brings  his  suit,  is,  according  to  Mr.  Justice 
Patteson,  the  proper  one  for  that  purpose — that  is,   the  sold 

note. 

We  do  not  discover  in  Justice  v.  Lang,  reported  in  42  N.  Y. 
493,  and  again  in  52  N.  Y.  323,  any  thing  that  conilicts  with 
the  views  we  have  expressed,  or  that  gives  material  aid  in 
deciding  the  points  we  have  discussed. 

The  memorandum  in  question,  expressing  that  the  iron  had 
been  sold,  imported  necessarily  that  it  had  been  bought.  The 
contract  was  signed  by  the  agent  of  both  parties,  the  buyer  and 
the  seller,  and  in  our  opinion  was  a  perfect  contract,  obligatory 
upo:?'  both  the  parties  thereto. 

Judgment  reversed,  and  cause  remanded  for  a  new  trial. 


/\ii       Monies  OF  OBTAINING  TITI.F.  TO  I'ERSONAL  PIIOI'ERTY. 

As  to  requisites  of  the  memor.iniiiiin,  see  next  case.  As  to  signing 
agent,  consult:  Ciill  v.  Hewitt,  7  lUisl).  10;  Smitli  v.  Jones,  7  Leif; 
165,  30  Am.  Dec.  49.S;  McComb  v.  Wriglit,  4  Johns.  Ch.  659;  Uainli 
V.  Savage,  52  Wis.  no,  38  Am.  Kep.  723;  Hent  v.  Cobli,  9  Grav,  3( 
69  Am.  Dec.  295;  Tull  v.  David,  45  Mo.  444,  too  Am.  Dec.  385;  Joh 
son  V.  Uiuk,  35  N.  J.  (L.)  342,  10  Am.  Rep.  243;  Newberry  v.  Wall, 
N.  J.  576;  Williams  v.  Woods,  16  Md.  220;  Scwell  v.  Fitch,  8  Cow.  2 


SANBORN  V.  FLAGLER. 


[9  Allen,  474.] 

Supreme  yudicial  Court  of  Massachusetts,  1864. 

Contract  brought  by  plaintiffs,  who  were  partners  under  1 
firm  of  Sanborn,   Richardson   &    Company,    against   John 

Fhiglcr  and  Iloidane,   as  partners  under  the  firm 

Iloldane  &  Company.  The  writ  was  served  only  upon  Fl; 
ler.  The  plaintiffs  alleged  that  the  defendants  had  refused 
deliver  to  them  fifty  tons  of  best  refined  iron,  in  accordai 
with  a  written  agreement  entered  into  between  them.  The 
fendant  set  up,  among  other  defenses,  the  statute  of  frau 
One  of  the  plaintiffs  was  called  to  the  stand,  and  produced 
be  offered  in  evidence  a  paper,  of  which  the  following  is  a  c< 
as  near  as  can  be  made : 

"Will  deliver  S.  R.  &  Co.  best  refined  iron  50  tons  wit 
90  days — at  5  ct  p  lb  4  of  cash.  Plates  to  be  10  to  16  inc 
wide  and  9  feet  to  11  long.  This  offer  good  till  a  o'ci 
Sept.  II,  1S63.     J.  H.  F.     J.  B.  R." 

The  defendant  objected  that  the  paper  was  not  a  suffici 
memorandum  in  writing  of  the  alleged  bargain  signed  by 
party  to  be  charged,  and  that  parol  evidence  was  not  admiss 
so  as  to  make  it  such  a  inemorandum  as  could  be  admit 
The  judge  ruled  that  the  paper  was  a  suflicient  memorandi 
and  would  bind  the  defendant  if  he  was  a  member  of  the  1 
of  Iloldane  &  Company.  The  witness  then  testified  that 
agreement  was  written  by  him,  and  that  he  and  the  defenc 
signed  their  initials,  the  defendant  writing  the  initials  "J.  IL 
and  he  the  initials  "J.  B.  R.  ;"  and  that  before  the  defen( 
left  the  plaintiff's  office,  and  before  3  o'clock,  he  accepted 


I'KKSONAL  rUOl'ERT 


ee  next  case.  As  to  signing  b}' 
lo;  Sniitli  v.  Jones,  7  Leigii, 
It,  4  Johns.  Cli.  659;  Hatnlier 
Uent  V.  Cobb,  9  Grav,  397, 
444,  100  Am.  Dec.  385;  John- 
cp.  J43;  Newberrv  v.  Wall,  84 
o;  Scwull  V.  Fitch,  8  Cow.  ^15. 


AGLER. 


4-] 


Massnc/iiiscits,  1864. 

ho  were  partners  under  the 
ompany,  against  John  H. 
partners  under  the  firm  of 
was  served  only  upon  Flag- 
e  defendants  had  refused  to 

refined  iron,  in  accordance 
ito  between  tliem.  The  de- 
inses,    the  statute  of  frauds. 

the  stand,  and  produced  to 
'hich  the  following  is  a  copy 

it  refined  iron  50  tons  within 

lates  to  be   10  to  16  inches 

lis   offer  good  till  2  o'clock 
>  >) 

!  paper  was  not  a  sufficient 
leged  bargain  signed  by  the 
evidence  was  not  admissible 
lum  as  could  be  admitted, 
as  a  suflicient  memorandum, 
e  was  a  member  of  the  firm 
itness  then  testified  that  the 
nd  that  he  and  the  defendant 
ivritingthe  initials  "J.  II.F." 
id  that  before  the  defendant 
e  2  o'clock,  he  accepted  the 


k 


SANnOUN    V.   11. Act. 1:11. 


4^.^ 


proposition,  and  so  stated  to  the  di-fendant  verbally.  The  wit- 
ness testified  that  he  signed  his  initials  on  behalf  of  the  plaintiffs, 
and  that  he  understood  the  defendant  to  sign  for  the  ilrin  of 
Ilohbine  &  Company.  This  evidence  was  not  denied  by  the 
defendant.  The  judge  ruled  that  said  paper,  with  the  expla- 
nation given,  if  Richardson  was  believed,  was  a  sufficient  note 
or  memorandum,  and  was  binding  on  the  defendant  if  the  jury 
found  him  to  be  a  partner  as  alleged.  The  jury  found  a  ver- 
dict for  the  plaintiffs,  and  the  defendant  alleged  exceptions. 

IJicKLOW,  C.  J. — The  note  or  memorandum  on  which  the 
plaintiffs  rely  to  maintain  their  action  contains  all  the  requisites 
essential  to  constitute  a  binding  contract  within  the  statute  of 
frauds.     It  is  not  denied  by  the  defendant  that  a  verbal  accept- 
ance of  a  written  offer  to  soil   merchandise  is  sufficient  to  con- 
stitute a  complete  and  obligatory  agreement,  on  which  to  charge 
the  person  by  whom  it  is  signed.     In   such  case,  if  the  memo- 
randum is  otherwise  sufficient  when  it  is  assented  to  by  him  to 
whom  the  proposal  has  been  made,  the  contract  is  consummated 
by  the  meeting  of    the   minds  of  the  two  parties,  and  the  evi- 
dence necessary  to  render   it  valid  and  capable  of  enforcement 
is  supplied  by  the  signature   of  the  party  sought  to  be  charged 
to  the  offer  t")  sell.     Indeed,  the  rule  being  well  settled  that  the 
signature  of  the  J   'endant  only  is  necessary  to  make  a  binding 
contract  within  the  provisions  of  the  statute  relating  to  sales  of 
merchandise,  it  necessarily  follows  that  an  offer  to  sell   and  an 
express  agreement  to  sell  stand  on  the  same  footing,  inasmuch 
as  the  latter,  until  it  is  accepted  by  the  other  party,  is  in  effect 
nothing  more  than  a  proposition  to  sell  on  the  terms  indicated. 
The  acceptance  of  the  contract  by  the  party  seeking  to  enforce 
it  may  always  be  proved  by  evidence  aliunde. 

The  objections  on  which  the  defendants  rely  are  twofold. 
The  first  is  that  the  note  or  memorandum  does  not  set  forth 
upon  its  face,  in  such  manner  as  to  be  understood  by  the  court, 
the  essential  elements  of  a  contract.  But  this  position  is  not 
tenable.  The  nature  and  description  of  the  merchandise,  the 
quantity  sold,  the  price  to  be  paid  therefor,  the  terms  of 
payment,  and  the  time  within  which  the  article  was  to  be  deliv- 
ered, are  all  clearly  set  forth.  But  it  is  urged  that  the  paper 
does  not  disclose  which  of  the   parties  is   the   purchaser   and 


,)2|       Monies  OK   OHTAINlN<;   Tl il.K  TO  IMUlhONAL  1'1'OI'KUTV. 

whidi  tlic  seller,  iiiul  that  no  piircliascr  is  in  fact  named  in  tl 

paper.    This  would  he  a  fatal  olijiction  if  well  founded.    'I'he 

can  he  no  contract  or  valid   niemoranduni  of  a  contract  vvhii 

does  not  show  who  arc  the  c()ntractin<r  parties.      Mut  there  is  i 

such  defect  in  the  note  or   meinoranduin   held  l>y  the  i)laintifl 

The   stipulation   is   explicit  to  deliver  merchandise  to  S.  \i. 

Co.       It    ccrt.iinlv    needs    no    ar<;umcut    to    demonstrate    th 

an  agreement  to  deliver  <,'oo(ls  at  a  fixed  price  and  on  speciti 

terms  of  payment  is  an  aj,neemenl  to  sell.      Delivery   of  goo 

at  a  stipulated  price  constitutes  a  sale;   an  apeement  for  su- 

delivery   is   a  contract  of   sale.     Nor  can    there  be  any  dou 

raised  as  to  the  intrinsic  import  of  the  memorandum  concerriii 

the  character  or  capacity  in  uhicii    the  parties  are   intended 

1)0    named.     A  stipulation  to  deliver  merchandise  to  a  pers 

clearly  indicates  that  he  is  the  purchaser,  because  in  every  va 

sale  of  goods  delivery  must  be  made  by  the  vendor  to  the  v( 

dee.     We  can  therefore  see  no  ambiguity  in  the  insertion  of  t 

name  of  the  purchaser  or  seller.     The  case  is  much  stronger 

favor  of  the  validity  of  the  memorandum   in  this  respect  th 

that   of    Salmon    Falls  Mfg.  Company  v.   Goddard,  14  llo 

446.     There  only  the  names  of  the  parties  were  inserted,  wi 

out  any  word  to   indicate  which  was  the  buyer  and  which   m 

the  seller.     It  was  this  uncertainty  in  the  memorandum  wh 

formed  the  main  ground  of  the  very  able  dissenting  opinion 

Mr.  Justice  Curtis  in  that  case.    So  in  the  leading  case  of  Hai 

v.  Ogden,  3  Johns.  399,  there  was  nothing  in  the  memorandi 

to  show  which  of  the  two  parties  named  agreed  to  sell  the  m 

chandise.     But  in  the  case  at  bar,  giving  to  the  paper  a  reas< 

able  interpretation,  as  a  brief  document  drawn  up  in  the  ha 

of  business  and  intended  to  express  in  a  few  words  the  terms 

a  bargain,  we  can  not  entertain  a  doubt  that  it  indicates  v> 

suilicient  clearness  that  the  plaintiffs  were  the  purchasers,   ; 

the  defendant  the  seller  of  the  merchandise,  on  the  terms  thei 

expressed.     Indeed,  we  can  see  no  reason  why  a  written  agi 

ment  by  one  party  to  deliver  goods  to  anotlif-  pnvty  does  no 

clearly  show  that  the  latter  is  tlv    pu'    laser  and  the  former 

seller  as  if  the  agreement  ha  '  .u  express  terms  by  one 

sell  goods  to  the  other. 

The  other  objection  to  the        morandum  is  that  the  name 
the  party  sought  to  be  charged  does  r  )t  appear  on  the  face 


I'lUlhONAL  I'l'.oI'KUTV. 


scr  is  in  fact  iiamcil  in  tlie 
1)11  if  well  I'oiindfil.    There 
ntlmn  of  a  contract  wliich 
i<j  paities.     But  tlicre  is  no 
limn   iielil  l>y  tl'.e  plaintiffs, 
cr  merchandise  to  S.  11.    tS: 
ncnt    to    demonstrate    that 
llxed  price  and  on  specitied 
)  sell.      Delivery   of  ^ooils 
le  ;   an  agreement  for  such 
or  can    there  be  any  donlit 
e  memorandnm  concerning 
he  parties  are  intended   to 
cr  merchandise  to  a  person 
user,  becanse  in  every  valid 
B  by  the  vendor  to  the  ven- 
i<ruity  in  the  insertion  of  the 
he  case  is  mnch  stron^^er  in 
uidiim    in  this  respect  than 
)any  v.    Goddard,  14  How. 
parties  were  inserted,  with- 
is  the  buyer  and  which   was 

in  the  niemoraiidum  which 
'  able  disscntin<j  opinion  of 
in  the  leading  case  of  Bailey 
lothing  in  the  memorandum 
imed  agreed  to  sell  the  mer- 
giving  to  the  paper  a  reason- 
ment  drawn  up  in  the  haste 
in  a  few  words  the  terms  of 

doubt  that  it  indicates  with 
fs  were  the  purchasers,  and 
[landise,  on  the  terms  therein 
reason  why  a  written  agree- 
,  to  Ml''  p-uty  does  not  as 
»ui  .laser  ami  the  former  the 
n  express  terms  by  one  to 


sANitoUN    y-  l"I.A(.I.i;lt. 


•t- 


the  paper.    Tf  by  this  is  meant  that  the  signatures  of  all  the  per 
sons  who  are  named  as  defendants  are  not  allixed  to  the  mem... 
randum.  or   th:;t   it    is   not  signed  with  the  copartnership  name 
uuder  which  it  is  alleged  that  the  persons  named  as  .leten.lants 
.10  business,  the  fact  is  certainly   so.      I?ut    it  is  not  essential   to 
the  validitv  of  the  memorandum  that  it  should  be  so  si-ned.    An 
a-ent  may  write  his  own  name,  and  thereby  bind  his  p.uuipai; 
and  parol  evidence  is    competent   to  prove  that  he  signed  the 
„,emoraudum  i.i  his  capacity  as  age.it.     On  the  same  prmciple, 
a  partner  may  by  his  individual  signature  bind  the  firm,  it  the 
contract  is  within  the  scope  of  the  business  of  the  lirm,  which 
may  be  shown  by  extrinsic  evidence.    Soames  v.  .Spencer,  i  D. 
.^R.  32;    Long  on  Sales.  38;   Ikowne  on   St-.tute   ol    Frauds, 
section  367;   lliggins  v.  Senior,  S  M.  &  W.  S34  ;  Williams  v. 
Bacon,   2    Gray,    3^7^    393-      1^^'«""'"'    '"  ^''^  ''''^^  at  bar    the 
action  is  in  effect   against   Flagler    alone.      He    only  has  been 
served  with  process  and  appears  to  defend  the  action.  Whether 
he  si<Mied  as  agent  for  the  firm  or  in  his  individual  capacity  19 
immaterial.     In  either  aspect  he  is  liable  on  the  contract. 

It  is  hardly  necessary  to  add  that  the  signature  is  valid  and 
binding,  though  made  with  the  initials  of  the  party  only,  and 
that  parol  evidence  is  admissible  to  explain  and  apply  them. 
Phillimorc  v.  Barry,  i  Camp.  5^3!  ^^'*''"°"  !'""«  ^^^'»- 
Company  v.  Goddard,  ubi  supra;   Barry  v.  Combe,  i  Pet.  640. 

Exceptions  overruled. 

Memorandum  need  not  be  contained  in  one  paper.  Lerned  v.  Wann- 
emacher,  9  Allen,  41-.  R>-"  v.  U.  S.,  136  U.  S.  83;  Peck  v^  Vande- 
mark,  99  N-  Y.  29;  Austin  v.  Davis,  i.S  Ind.  472,  ^S  Am  St.  ep.  4.  6. 
Should  contain  names  or  description  of  the  part.es.  Lmcoln  v  hm 
Preserving  Company,  132  Mass.  129;  Grafton  v.  Cummings,  99  U.  S. 
^,^.  Ross  V.  Allen,  45  K..n.  231 ;  Lee  v.  Cherry,  85  lenn  707,  4  A-n.  S  • 
Rep.  800,  the  subject-n.atter  of  the  contract.  May  v.  Wood,  134  Mass 
,27,  McElroy  v.  Hush.  35  >nch. -497,  the  price.  Ide  v.  Staunton  15 
Vt  685,  40  Am.  Dec.  698;  O'Neil  v.  Crane,  67  Mo.  250  As  to  tune 
and  olace  of  delivery,  see  Smith  v.  Shell,  82  Mo.  215,  52  Am.  Rep.  365. 


orandum  is  that  the  name  of 
es  t   't  appear  on  the  face   of 


426       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPEUTI 

§  79.    Same— At  what  time  may  memorandum  be  s 
BIRD  V.  MUNROE. 

[66  Me.  337;  22  Am.  Ren.  327.] 

Supreme  yudicial  Court  of  Maine,  i8~y. 

Peters,  J. — On  March  3,  1S74,  at  Rockland,  in  this 
the  defendant  contracted  verbally  with  the  plaintiffs  fc 
purchase  of  a  quantity  of  ice,  to  be  delivered  (by  immc 
shipments),  to  the  defendant  in  New  Yorii.  On  Marc 
1S7).,  or  thereabouts,  the  defendant,  by  his  want  ot  reac 
to  receive  a  portion  of  the  xe  as  he  had  agreed  to,  tempo 
prevented  the  plaintiffs  froi.i  performing  the  contract  on 
part  according  to  the  preparations  made  by  them  for  the 
pose.  On  March  24,  1S74,  the  parties,  then  in  New  Yorl 
their  previous  verbal  contract  into  writing,  antedating  it 
original  contract  made  at  Rockland  on  March  3,  1S74.  C 
same  dav  (March  24),  by  consent  of  the  defendant,  the  pla 
sold  the  same  ice  to  another  party,  reserving  their  claim  aj 
the  defendant  for  the  damages  sustained  by  them  by  the  b 
of  the  :ontract  by  .le  defendant  on  March  10  or  aboui 
time.  This  action  was  commenced  on  April  11,  1S74,  c 
ing  on  the  contraci:  as  made  on  March  2,  and  declarin 
damages  sustained  by  the  breach  of  contract  on  March  i 
thereabouts,  and  prior  to  March  24,  1874.  Several  obje- 
are  set  u^   against  the  plaintiffs'  right  to  recover. 

The  first  objection  is,  that  in  some  respects  the  al!egati< 
the  writ  and  the  Written  proof  do  not  concur.  But  we 
this  point,  as  an  imperfccHm,  ni  the  v  -it  may,  either  wi 
without  terms,  be  corrected  I'V  amendment  hereafter. 

Then  it  is  claimed  for  the  defendant  that,  as  matter  of 
the  parv  -s  intended  to  make  a  new  and  original  contraci 
March  24,  by  their  writing  made  on  that  day  and  arte 
March  2,  and  that  it  was  not  their  purpose  thereby  tc 
expression  and  etBcacy  to  any  unwrittjn  contract  made  by 
before  that  time.  But  we  think  a  jury  would  be  well  wan 
in  coming  to  a  different  conclusion.  Undoubtedly  thei 
circumstances  tending  to  throw  some  doubt  upon  the  ide 


Oi 


:  TO  I'EllSONAL  PROPERTY. 

nay  memoranduin  be  made. 
UN  ROE. 

Vm.  Ren.  327.] 

•tri  of  Maine,  /5~7. 

4,  at  Rockland,  in  this  state, 
Uy  with  the  plaintiffs  for  the 
be  delivered  (by  immediatfe 
New  York.  On  March  10, 
nt,  by  his  want  ot  readiness 
he  had  agreed  to,  temporarily 
forming  the  contract  on  their 
IS  made  by  them  for  the  pur- 
jarties,  then  in  New  York,  put 
;o  writing,  antedating  it  as  an 
nd  on  March  2,  1S74.  On  the 
t  of  the  defendant,  the  plaintiffs 
y,  reserving  their  claim  against 
stained  by  them  by  the  breach 
on  March  10  or  about  that 
:ed  on  April  11,  1S74,  count- 
March  2,  and  declaring  for 
of  contract  on  March  10,  or 
24,  1874.  Several  objections 
•ight  to  recover, 
ome  respects  the  allegations  in 
o  not  concur.  But  we  pass 
the  V  it  may,  either  with  or 
menciment  hereafter, 
iidant  that,  as  matter  of  fact, 
new  and  original  contract  as  of 
e  on  that  day  and  aiUedated 
their  purpose  thereby  to  give 
writtjn  contract  made  by  them 
a  jury  would  be  well  warranted 
ision.  Undoubtedly  there  are 
ome  doubt  upon  the  idea  that 


BIRD    V.   MINROE. 


427 


;| 


both  parties  understood  that  a  contract  was  fully  entered  into 
on  March  2,  1S74,  but  that  doubt  is  much  more  than  overcome 
when  all  the  written  and  oral  evidence    is  considered  togetlier. 
We  think  the   writing  made   on  the   twenty-fourth  of  March, 
with  the  explanations  as  to  its  origin,  is   to   be   considered  pre- 
cisely as  if  the  parties  on  that  day  had  signed  a  paper  dated  of 
that  date,  certifying  and  admitting  that  they  had  on  the  second 
day  of  March  made  a  verbal  contract  and  stating  in  exact  writ- 
ten terms  just  what  such  verbal  contract  was.     Parol  evidence 
is  proper  to  show  the  situation   of  the   parties   and  the  circum- 
stances under  which  the  contract  was  made.     It  explains  Init 
does  not  alter  the  terms  of  the  contract.     The  defendant  him- 
self invokes  it  to  show  that,  according   to   his   view,   the  paper 
bears  an  erroneous  date.     Such   evidence  merely  discloses  in 
this  case  such  facts  as  are  part  of  the  res  gestae.      IJenjamin 
on  Sales,  sec.  213;   Stoops  v.  Smith,    100  Mass.   63,   66,    and 

cases  there  cited. 

Then,  the  defendant  next  contends  that,  even  .f  the  writing 
signed  by  the  parties  was  intended  by  them  to  operate  retro- 
actively as  of  the  first  named  date,   as  a  matter  of  law,   it  can 
not  be  permitted  to  have  that  effect  and  meet  the  requirements 
of  the  statute  of  frauds.     The  position  of  the  defendant  is,  that 
all  which  took  place  between  the  parties   belore   the   twenty- 
fourth  of  March  was  of  the  nature  of  negotiation  and  proposi- 
tion only ;   and  that  there  was  no  valid  contract,  such  as  is  called 
for  by  the  statute  of  frauds,  before  that  day  ;   and  that  the  action 
is  not  maintainable,  because  the  breach  of  contract  is  alleged 
to  have  occurred  before  that  time.     The  plaintiffs,  on  the  other 
hand,  contend  that  the  real  contract  was  made  verbally  on   the 
second  of  March,  and  that  the  written  instrument   is  sufficient 
proof  to  make  the  verbal  contract  a  valid  one  as  of  that  date 
(March  2),  although  the  written  proof  was  not  made  out  until 
twenty-two    days    after    that    time.      Was    the    valid   contract, 
therefore,  made  ^n  March   2  or  March   24  ?     The  point  raised 
is,  whether,  in  vi  w  of  the  statute  of  frauds,   the  writing  in  this 
r  ise  shall  be  considered  as  constituting  the  contract  itself  or  at 
any  rate  any  substantial  portion  of  it,    or  whether  it  may  be 
regarded  as  merely  the  necessary   legal   evidence  by  means  of 
which  the  prior  unwritten  contract  may  be  proved.     In  other 
words,  is  the  writing  the  contract,   or  only  evidence  of  it;  we 
incline  to  the  letter  view. 


42S       MODES  OF   ORTAIMNG  THI.1C  TO  PERSONAL  I'UOPEllTV. 

The  peculiar  wordini;  of  the  statute  presents  a  strong  arg 

ment    for    such    a    determination.     The    section    reads:      "^ 

contract  for  the  sale  of  any  jjjoods,   wares,  or  merchandise,   f 

thirty  dollars    or    more,    siiall   be    valid,   unless  the  purchas 

accep;s  and  receives  part  of  the   -oods,   or  gives  something 

earnest  to  bind  the  bargain,  or  in  part  payment  thereof,  or  sor 

note  or  memorandum  thereof  is  made  and  signed  by  the  pa 

to  be  charged  thereby,   or  his   agent."     In  the  first  placet 

statute  does  not  go  to  all   contracts  of   sale,   but  only  to  the 

where  the  price  is  over  a  certain  sum.     Then,  the   requirem( 

of  ':1c  statute  is  in  the  alternative.     The  contract  need  not 

evidenced  bv  writing  at  all,  provided    "the    purchaser  acce] 

and  receives  a  part  of  the  goods,  or  gives  something  in  earn^ 

to  bind  the  bargain  or  in  part  payment  thereof."     If  any  c 

of  these  circumstances  will  as  effectually  perfect  the  sale  as 

writing  would,  it  is  not  easily  seen  how  the  writing  can  actuii 

constit^ute  the  contract,   merely  because  a  writing  happens 

exist.     It  could  not  with  any  correctness  be  said  that  anyth 

given  in  earnest  to  bind  a  bargain  was  a  substantial  part  of 

bargain    itself,    or    anything    more  than   a  particular  mode 

proof.     Then,  it  is  not  the  contract  that  is  required    to    be 

writing,  but  onlv  "some  note  or  memorandum  thereof."      T 

language  supposes  that  the  verbal  bargain  may  be  first  ma 

and  a  memorandum  of  it  given  afterward.     It  also  implies  1 

no  set  and  formal  agreement  is  called  for.     Chancellor  K 

savs  "the  instrument  is  liberally  construed  without  regard 

forms."     The  briefest  possible  forms  of  a  bargain  have  b 

deemed  sufficient  in  many  cases.     Certain  important  elem^ 

of    a    completed    contract   may   be    omitted    altogether. 

instance,  in  this  state,  the  consideration  for  the  promise  is 

required  to  be  expressed  in  writing.     GiUighan  v.  Boardn 

29  Me.  79.     Again,  it  is  provided  that  the  note  or  memo 

dum  is  suflkient,  if  signed   only  by  the   person  sought  t( 

charged.     One   party  may  be  held  thereby  and  the  other 

be.  *There  may  be  a  mutuality  of  contract  but  not  of  evid( 

or  of  remedy.     Still,    if   the   writing    is    to  be  regarded  ii 

cases  as  constituting  the  contract,  in  many  cases  there  woul 

but  one  contracting  party. 

Another  idea  gives  weight  to  the  argument  for  the  pos 
advocated  by  the  plaintiffs;   and  that  is,  that  such  a  consi 


)  PERSONAL   I'UOPEKTV. 

to  presents  a  strong  argu- 
Thc    section    reads:      "No 
^ares,  or  merchandise,   for 
alid,   unless  the  purchaser 
ds,   or  gives  something  in 
rt  payment  thereof,  or  some 
le  and  signed  by  the  party 
It."      In  the  first  phice  the 
of   sale,   but  only  to  those 
n.     Then,  the   requirement 
The  contract  need  not  be 
;d    "the    purchaser  accepts 
fives  something  in  earnest 
nent  thereof."     If  anyone 
ually  perfect  the  sale  as  a 
how  the  writing  can  actually 
:ause   a  writing  happens  to 
tness  be  said  that  anything 
vas  a  substantial  part  of  the 
than   a  particular  mode  of 
t  that  is  required    to    be  in 
jmorandum  thereof."     This 
)argain  may  be  first  made, 
irward.     It  also  implies  that 
ailed  for.     Chancellor  Kent 
:onstrued  without  regard  to 
ms  of  a  bargain  have  been 
Certain  important  elements 
2    omitted    altogether.     For 
ation  for  the  promise  is  not 
g.     Gillighan  v.  Boardman, 
that  the  note  or  memoran- 
by  the   person   sought  to  be 
Id  thereby  and  the  other  not 
contract  but  not  of  evidence 
nw    is    to  be  regarded  in  all 
in  many  cases  there  would  be 

le  argument  for  the  position 
hat  is,  that  such  a  construc- 


BlllI)    V.    MUNKOi:. 


429 


tion  of  the  statute  upholds  contracts  according  to  the  intention 
of  parties  thereto,  while  it,  at  the  same  time,  fully  suliservcs  all 
the  purposes  for  which  the  statute  was  created.  It  must  be 
borne  in  mind  that  verbal  bargains  for  the  sale  of  personal 
property  arc  good  at  common  law.  Nor  are  they  made  illegal 
by  the  stat.ite.  Parties  can  execute  them  if  they  mutually 
please  to  uo  so.  The  object  of  the  statute  is  to  prevent  perjury 
and  fraud.  Of  course,  perjury  and  fraud  can  not  be  wholly 
prevented;  but,  as  said  by  Bigclow,  J.  (Marsh  v.  Ilydo,  3 
Grav.  ?3i)i  "'"^  memorandum  in  writing  will  be  as  effectual 
agai'nst'perjury,  althougli  signed  subsequently  to  the  making  of 
a^vcrbal  contract,  as  if  it  had  been  executed  at  the  moment 
when  the  parties  consummated  their  agreement  by  word  of 
mouth."  We  think  it  would  be  more  so.  A  person  would 
be  likely  to  commit  himself  in  writing  with  more  care  and 
caution  after  time  to  take  a  second  thought.  The  locus  pen- 
jtentiiu  remains  to  him. 

By  no  means  are  we  to  be  understood  as  saying  that  all  writ- 
ten instruments  will  satisfy  the  statute,  by  having  the  effect  to 
make  the  contracts  described  in  them  valid  from  their  first  verbal 
inception.  That  must  depend  upon  circumstances.  In  many, 
and  perhaps,  most  instances,  such  a  version  of  the  transaction 
would  not  agree  with  t.ie  actual  understanding  of  tlie  parties. 
In  many  cases,  undoubtedly,  the  written  instrument  is  perse 
tlie  contract  of  the  parties.  In  many  cases,  as  for  instance,  like 
the  antedating  of  the  deed  in  Egery  v.  Woodard,  36  Me.  45, 
cited  by  the  defendant,  the  contract  (by  deed),  could  not  take 
effect  before  delivery;  the  law  forbids  it.  So  a  will  made  by 
parol  is  absolutely  void.  But  all  these  classes  of  cases  differ 
from  the  case  before  us. 

A  distinction  is  attempted  to  be  set  up  between  the  meaning 
to  be  given  to  R.  S.,  c.  iii,  sec.  4,  where  it  is  provided  that 
no  unwritten  contract  for  the  sale  of  goods  "shall  be  valid," 
and  that  to  be  given  to  the  several  preceding  sections  wliere  it 
provided  that  up. i.  certain  other  kinds  of  unwritten  contracts 
"no  action  shall  be  maintained;"  the  position  taken  being  that 
in  the  former  case  the  contract  is  void,  and  in  the  other  cases 
only  voidable  perhaps,  or  not  enforceable  by  suit  at  law.  But 
the  distinction  is  without  any  essential  difference,  and  is  now 
so  regarded  by  authors  generally  and  in  most  of   the  decided 


430       MU1)F,S  OF  Om-AINING  TITLE  TO  PERSONAL  PHOPKi;TY, 

cases.     All  the  sections  referred  to  rest  upon  precisely  the  s;i 

policy.     Exactly  the  same  object  is  aimed  at  in  all.     The 

fcrencc  of  phraseology  in  the  different  sections  of  the  orig 

Englisii  statute,  of  which  ours  is  a  substantial  copy,   may  ] 

haps  be  accounted  for  by  the  fact,  as  is  generally  concec 

that  the  authorship  of  the  statute  war-  the    work    of    diffe 

hands.      Although  our  statute   (R.  S.    1S71,    sec.  4)    uses 

words  "no  contr.ict  shall  be  valid,"  our  previous  statutes  i 

the  phrase  '-shall  be  allowed  to  be  good  ;"   and  the  change 

made  when  the  statutes  were  revised  in   1S57,  without  any 

islative  intent  to  make  an  alteration  in  the  sense  of  the  sect 

(K.  S.  1S41,  c.  136,  sec.  4.)     The  two   sets  of  phrases  v 

undoubtedly  deemed  to  be  equivalent  expressions.     The  w 

of  the  original  English  section  are,  '-shall   not  be  allowed  t 

good,"  meaning,  it  is  said,  not  good  for  the  purpose  of  sust 

ing  an   action    thereon    without    written    proof.     Browne, 

Frauds,  sees.  115,  136,  and  notes  to  the  sections;   Benjanr 

Sales,  sec.  114;   Townsend  v.  Hargraves,   iiS  Mass.  325, 

cases  there  cited. 

There  are  few  decisions  that  bear  directly  upon  the  pre 
point  which  this  case  presents  to  us.  From  the  natur 
things,  a  state  of  facts  involving  the  question  would  sel 
exist.  But  we  regard  the  case  of  Townsend  v.  Hargrt 
above  cited,  as  representing  the  principle  very  pointedly, 
was  there  held  that  the  statute  of  frauds  affects  the  remedy 
and  not  the  validity  of  the  contract;  and  that  where  there 
been  a  completed  oral  contract  of  sale  of  goods,  the  accept 
and  receipt  of  part  of  the  goods  by  the  purchaser  takes  the 
out  of  the  statute,  although  such  acceptance  and  receipt 
after  the  rest  of  the  goods  are  destroyed  by  fire  while  in 
hands  of  the  seller  or  his  agent.  The  date  of  the  agreei 
rather  than  the  date  of  the  part  acceptance  was  treated  as 
time  when  the  contract  was  made ;  and  the  risk  of  the  lo 
the  goods  was  cast  upon  the  buyer.  Vincent  v.  Germond 
Johns.  2S3,  is  to  the  same  effect.  We  are  not  aware  of 
case  where  the  question  has  been  directly  adjudicated  adve 
to  these  cases.  Webster  v.  Zielly,  53  Barb.  (N.  Y.)  48 
the  argument  of  the  court,  directly  admits  the  same  princ 
The  case  of  Leather  Cloth  Co.  v.  Hieronimus,  L.  R.,  i 
B.  140,  seems  also  to  be  an  authority  directly  in  point.     Tb 


rO  rKRSONAI.  IMlOriCKTY 


rest  upon  precisely  the  same 
1  aimed  at  in  all.  The  dif- 
ent  sections  of  the  original 

substantial  copy,   may  per- 
t,  as  is  generally  conceded, 

war-  the  work  of  different 
,  S.  1S71,  sec.  4)  uses  the 
"  our  previous  statutes  used 

good  j"  and  the  cliange  was 
Ed  in  1S57,  without  any  leg- 
n  in  the  sense  of  the  section, 
e  two  sets  of  phrases  were 
ent  expressions.  The  words 
,  '-shall  not  be  allowed  to  be 
od  for  the  purpose  of  sustain- 
vritten  proof.  Browne,  St. 
to  the  sections;  Benjamin's 
rgraves,   118  Mass.  325,  and 

ar  directly  upon  the  precise 
to  us.  From  the  nature  of 
f  the  question  would  seldom 

of  Townsend  v.  Hargraves, 
principle  very  pointedly.  It 
frauds  affects  the  remedy  only 
t;  and  that  where  there  has 
sale  of  goods,  the  acceptance 
y  the  purchaser  takes  the  case 
\  acceptance  and  receipt  are 
istroyed  by  fire  while  in  the 

The  date  of  the  agreement 
:ceptance  was  treated  as  the 
;  and  the  risk  of  the  loss  of 
r.  Vincent  v.  Germond,  1 1 
t.  We  ave  not  aware  of  any 
directly  adjudicated  adversely 
y,  53  Barb.  (N.  Y.)  482,  in 
y  admits  the  same  principle. 
.  Hieronimus,  L.  R.,  10  Q. 
ity  directly  in  point.     Thomp- 


BIKD    V.   MUMIOE. 


43' 


son  V.  Alger,  12  Met.  428,  435,  and  Marsh  v.  Hyde,  3  Gray, 
331,  relied  on  by  defendant,  do  not,  in  their  results,  oppose  the 
idea  of  the  above  cases,  although  there  may  be  some  expres- 
sion in  them  inconsistent  therewith.  Altogether  another  qucs- 
tion  was  before  the  court  in  the  latter  cases. 

But  there  are  a  great  many  cases  where,  in  construing  the 
statute  of  frauds,  the  force  and  effect  of  the  decisions  go  to  sus- 
tain the  view  we  take  of  this  question,    by  the  very  strongest 
implication.     Such  as :  that  the  statute  does  not  apply  where 
the  contract    has  been   executed   on   both   sides;    Bucknam  v. 
Nash,  13  Maine,  474;— that  no  person   can  take  advantage  of 
the  statute  but  the   parties  to  the   contract,  and  their  privies ; 
Cowan  v.  Adams,  10  Maine,  374;— that  the  memorandum  may 
be  made  by  a  broker;  Hinckley  v.  Arey,  37  Maine,  362  ;  or  by 
an  auctioneer;    Cleaves  v.    Foss,  4   Maine    i ;— that  a  sale  of 
personal  property  is  valid  when  there  has  been  a  delivery  and 
acceptance  of  part,  although  the  part  be  accepted  several  hours 
after  the  sale;  Davis  v.  Moore,  13  Maine,  424;  or  several  days 
after;  Bush  v.  Holmes,  53  Maine,  417;  or  ever  so  long  after; 
Browne,  St.    Frauds,  sec.   337,  and  cases  there   noted;— that 
a   creditor,   receiving  payments  from  his  debtor  without   any 
direction  as  to   their  application,  may   apply   them  to  a  debt 
on  which  the  statute   of  frauds  does  not  allow  an  action  to  be 
maintained;  Haynes  v.  Nice,  100  Mass.   327  ;— that  a  contract 
made  in  France,  and   ralid  there  without  a  writing,  could  not 
be  enforced  in  England  without  one,  upon  the  ground  that  the 
statute  related  to  the  mode  of  procedure  and  not  to  the  validity 
of  the  contract;  Leroux  v.  Brown,   i3  C.  B.  Soi ;  but  this  case 
has  been  questioned  somewhat ;— that  a  witness  may  be  guilty 
of  perjury  who  falsely  swears  to  a  fact  which  may  not  be  com- 
petent evidence   by  the  statute  of  frauds,   but  which  becomes 
material  because  not  objected  to  by  the  party  against  whom  it 
was  offered  and  received  :_  Howard  v.  Sexton,  4  Coms.  157; — 
that   an    agent   who   signs   a  memorandum   need  not  have  his 
authority  at  the  time  the  contract  is  entered  into,  if  his  act  is 
orally  ratified   afterward;   Maclean  v.  Dunn,  4  Bing.  722;— 
that  the  identical  agreement  need  not  be  signed,  and  that  it  is  suf- 
ficient if  it  is  acknowledged  by  any  other  instrument  duly  signed  ; 
Gale  V.  Nixon,  6  Cow.   445;— that  the  recognition  of  the  con- 
tract maybe  contained  in  a  letter;  or  in  several  letters,  if  so 


43- 


MODES  OF  OUT.MNMNG   TITI.F,  TO  PERSONAL  PllOPERTY. 


connected  by  "written  links"  as  to  form  sufficient  evidence  ( 

the  contract;— that  tlie  letters  may  be  addressed  to  a  third  pe 

son;  Hrowne,  St.  Frauds,  sec.  346;  Fyson  v.Kitton,  30  E.  L. 

Eq.  374;  Gibson  v.  Holland,  L.  R.  i   C.  P.  i  ;— that  an  ap;ei 

may  write  his  own  name   instead   of   that  of  his  principal 

intending  to  bind    his   principal  by   it;    Williams  v.  Bacon, 

Gray,  3S7,   393,   and  citations  there;— that  a  proposal  in  wri 

injr,   if  accepted  by  the  other  party  by   parol,    is  a    snllicie 

memorandum;  Reuss    v.   Picksley,    L.   R.    i    Exc.  342;— th 

where  one  party  is  bound  by  a  note  or  memorandum  the  oth 

party  may  be  bound  if  he  admits  the  wri-in^^  by  anolhcr  wr 

ing  by  him  subsequently  signed ;   Dobell  v.   Hutchinson,  3  .( 

8c  E,    35t; — that   the   written   contract  may   be   rescinded   1 

parol,  although  many  decisions  are  opposed  to  this  propositioi 

Richardson  V.  Cooper,   25  Maine,  450; — that  equity  will  intc 

fere  to   prevent  a  party   making  the  statute   an   instrument 

fraud;  Ryan  v.  Dox,   34  N.   Y.   307;   Hassam  v.  Barrett,  i 

Mass,  356,  25S;— thata  contract  verbally  made  may  be  mai 

tained  for  certain  purposes,  notwithstanding  the  statute  ;  that 

person  who  pays  his  money  under  it  can  not  recover  it  back 

the  other  side  is  willing  to  perform;  and  he  can  recover  if  p< 

formance  is  refused :    Chapman  v.    Rich,  63  Maine,  5S8,  ai 

cases  cited  ; — that  a  respondent  in  equity  waives  the  statute  a; 

defense  unless  set  up  in  plea  or  answer;  Adams  v.  Patrick, 

Vt.  516; — that  it  must  be  specially  pleaded  in  an  action  at  lai 

Middlesex  Co.  v.   Osgood,  4  Gray,  447;  Lawrence  v.  Chai 

54  Maine,  196; — that  the   defendant   may  waive  the  protecti 

of  the  statute  ar:l  admit  verbal  evidence  and  become  bound 

it;  Browne,  St.  Frauds,  sec.  135. 

It  may  be  remarked,  however,  that  in  most  courts 
defendant  may  avail  himself  of  a  defense  of  the  statute  uni 
the  general  issue.  The  different  rule  in  Massachusetts  s 
Maine  grew  out  of  the  practice  act  in  the  one  state  and  in  1 
statute  requiring  the  filing  of  specifications  in  tie  other. 

It  is  clear  from  the  foregoing  cases,  as  well  as  from  m: 
more  that  might  be  cited,  that  the  statute  does  not  forbid  pa 
contracts,  but  only  precludes  the  bringing  of  actions  to  enfo 
them.  As  said  in  Thornton  v.  Kempster,  5  Taunt.  7S6,  7: 
"The  statute  of  frauds  throws  a  difficulty  in  the  way  of  the  t 
dence."     In   a  case    already   cited,  Jervis,  C.  J.,  said :     "1 


PERSONAL  PIIOPERTY. 

form  sufficient  evidence  of 
e  addressed  to  a  tiiird  per- 
'yson  v.Kitton,  30  E.  L.  Sc 
I   C.  P.  I  ; — that  an  ap;ent 
f   tliat  of  his  principal    if 
it;    Williams  v.  liacon,  2 
— that  a  proposal  in  writ- 
by   parol,    is  a    sufficient 
L.   R.    I    Exc.  342;— that 
or  memorandum  the  other 
le  wri'in^  by  another  writ- 
obeli  V.   Hutchinson,  3  A. 
act  may   be   rescinded   by 
pposed  to  this  proposition  ; 
^o; — that  equity  will  inter- 
statute   an   instrument   of 
7;   Hassam  v.  Barrett,  115 
rbally  made  may  be  main- 
standing  the  statute;  that  a 
can  not  recover  it  back  if 
and  he  can  recover  if  per- 
Rich,  63  Maine,  5SS,  and 
|uity  waives  the  statute  as  a 
wer;  Adams  v.  Patrick,  30 
pleaded  in  an  action  at  law; 
,  447 ;  Lawrence  v.  Chase, 
t   may  waive  the  protection 
ence  and  become  bound  by 

jr,  that  in  most  courts  a 
ilefense  of  the  statute  under 
rule  in  Massachusetts  and 
in  the  one  state  and  in  the 
cations  in  tie  other, 
ases,  as  well  as  from  many 
tatute  docs  not  forbid  paid 
ringing  of  actions  to  enforce 
empster,  5  Taunt.  7S6,  7SS, 
ficulty  in  the  way  of  the  evi- 
,  Jervis,  C.  J.,  said:     "The 


Binn    V.    MUNHOK. 


■133 


effect  of  the  section  is  not  to  avoid  the  contract,  but  to  bar  the 
remedy  upon  it,  unless  there  be  writing."  See  analogous  case 
of  McCl'.lan  v.  McClellan,  65  Maine,  300. 

liut  the  defendant  contends  that  this  course  of  reasoning 
would    make    a    memorandum   sufficient  if   made  after   action 
brought,  and  that  the   authorities  do   not   agree  to  that  proposi- 
tion.    There   has  been   some  judicial  inclination  to   favor  tlie 
doctrine  to  that  extent  even,  and  there  may  be  some  logic  in  it. 
Still  the  current  of  decision  requires  that  the  writing  must  exist 
before  action  brought.     And   the   reason   for  the  requirement 
does  not  militate  against  the  idea  that  a  memorandum  is  only 
evidence    of    the    contract.     There    is    no    actionable   contract 
before  memorandum  obtained.     The  contract  can  not  be  sued 
until  it  has  been  legally  verified  by  writing;   until  then  there  is 
no  cause  of  action,  although  there  is  a  contract.     The  writing 
is  a  condition  precedent  to  the  right  to  sue.      VVillcs,  J.,  per- 
haps correctly  describes  it  in  Gibson  v.   Holland,  supra,  when 
he  says,    "the  memorandum   is   in   some  way    to   stand    in  the 
place  of  a  contract."      He  adds:    "The  courts  have  considered 
the  intention  of  the  legislature  to  be  of  a   mixed  character ;  to 
prevent  persons  from  having  actions  brought  against  them  so 
long  as  no  written  evidence  was  existing  when  the  action  was 
instituted."     Browne,  St.  Frauds,  sec.  338.     Benjamin's  Sales, 
sec.  159.     Fricker  V.  Thomlinson,   i   Man.  &  Gr.  773.     Brad- 
ford V.  Spyker,  33  Ala.  134;   Bill  v.   Bamcnt,  9  M.   &  W.  36. 
Philbrookv.  Belknap,  6  Vt.  3S3.     In  the  last  case  it  is  said, 
"strictly  speaking,  the  statute  does  not  make  the  contract  void, 
except    for   the   purpose   of  sustaining  an  action  upon  it,    to 

enforce  it." 

Action  to  stand  for  trial. 

CoNSULT-William  v.   Bacon,  2  Gray,  387;  lloughtaling  v.  Bali,  20 
Mo.  563. 

28  •  x 


J-  '- 


434       MOUKS  OF   Dili  AIMNG   TITI.F.  TO  IMC ItSONAI.  mOPEIlTY. 


§   80.    Same-Need  not  be  delivered-How  signed. 
DRURY  V.  YOING. 

[5H  NKl.  5^6;  42  Atn.  Rep.  ,-?.!3.] 
Ccfii-f  of  Appcii/s  of  MiiryhiinL  1882. 

Action  by  William  II.  II.  Younjj  against  Edward  T.  Drury 
William  II.  James,  Jr.,  and  .Samuel  M.  Rankin  for  breach  0 
contract  to  deliver  goods  to  plaintiff.  From  a  judgment  fo 
plamtiff,  defendants  appealed. 

.SroNK,  J.— One  of  the  questions  presented  for  our  considei 

ation  in  this  case   is,  whether  the    "note    or   memorandum    i 

writing"  required  by  the  seventeenth  section   of   the  statute    o 

frauds,  must  be  delivered  to  the  other  party  thereto.     It  is  ap 

parcnt'from  the  evidence    that    the    note    or   memorandum    i 

writing  relied  on  in  this  case,  was  made  by  the   bookkeeper   c 

the  appellants  by  the  direction  of  one  of  them,  and  by  the  booL 

keeper  placed  in  their    safe,     among    other    papers,   where 

remained  from  the  twenty-seventh  of  August,  iSSi,  the  day  0 

which  it  was  written,  until  it  was    produced   in   court,    at   tl: 

trial  of  the  case  in  February,  iSS::.     There  is  no  evidence  thi 

this  note  was  ever  seen  by  the  appellee,    or  even   its   existenc 

known  to  him  until  the  trial;  and  it  certainly  never  was   deli 

eredtohim,  or  went  out  of  the  possession  of  the   appellant: 

until  produced  in  court.     It  is  strongly  insisted  by   the   appe 

lants  that  the  statute  is  not  gratified  without  a  delivery  of   tli 

note  or  memorandum.      It   must    be    borne    in    mind    that    tl 

statute  of  frauds  was  not  enacted   for   cases  where  the   parti 

have  signed  a  written  contract;  for  in  these  cases,  the  commc 

law  affords  quite  a  suthcient   guaranty  against  frauds  and  p« 

juries,  as  is  provided  by  the  statute.      The  intent  of  the  statu 

was  to  prevent  the  enforcement  of  parol   contracts,   unless    t 

defendant  could  be  shown  to  have  executed  the  alleged  contra 

by  partial  performance,  or  unless  his  signature  to  some  writti 

note  or  memorandum  of  the  bargain— not  to  the    bargain  its( 

— could  be  shown. 

The  existence  of  the  note  or  memorandum  presupposes 
antecedent  contract  by  parol,  of  which  the  writing  is  a  note 
memorandum      Benjamin  on  Sales,  sec.  208. 


'EUSONAL  I'ROI'EIITY. 


Ditriiv   y.  ^()^•^(; 


4.v= 


sred— How  signed. 
NG. 

u-y/ninL  1882. 

igainst  Edward  T.  Diury, 

J.  Rankin    for  breach    of 

From    a   jud<,nncnt    for 

resented  for  our  con?idcr- 
iiotc  or  memorandum  in 
section  of  the  statute  of 
■  party  thereto.  It  is  ap- 
iiote  or  memoranihim  in 
ide  by  tiie   bookiveeper   of 

of  them,  and  by  the  book- 
j    other    papers,   where    it 

Ausjust,  iSSi,  the  day  on 
roduced  in  court,  at  the 
There  is  no  evidence  that 
ee,  or  even  its  existence 
:ertainly  never  was  deliv- 
session  of  the  appellants, 
;ly  insisted  by  the  appel- 
^vithout  a  delivery  of   this 

borne  in  mind  that  the 
r  cases  where  the  parties 
n  these  cases,  the  common 
ty  against  frauds  and  per- 
The  intent  of  the  statute 
larol  contracts,  unless  the 
ccuted  the  allecjed  contract 
5  signature  to  some  written 
— not  to  the    bargain  itself 

morandum  presupposes  an 

ich  the  writing  is  a  note  or 

sec.  20S. 


Now  the  statute  itself  is  entirely  silt-nt  on  the  (|ucstion  of  the 
delivery  of  the  note  or  memoraudnm  of  the  bargain,  ami  its 
literal  reciuireiULMits  are  fultilled  bv  the  existence  of  the  note  or 
nuiniiraudum  of  the  liar^jain.  signed  by  the  |)arty  to  be  chai'^ed 
thereby.  'I'lie  statute  itself  deals  exclusively  with  the  existciKC 
and  not  with  the  custody  of  the  paper. 

If  the  nondeli\eiy  of  the  note  dues  not  violate  the  letter  of 
the  statute,  would  it  violate  its  spirit  and  be  liable  to  any  of  the 
mischiefs  which  the  statute  was  made  to  prevent? 

The  statute  \>as  passed  to  prevent  fraud  practiced  through 
the  instrumentality  of  perjury.  It  was  passed  to  prevent  the 
defendant  from  suffering  loss,  under  the  parol  testimony  of 
either  a  perjured  or  mistaken  witness,  speaking  <jf  a  bargain 
iliffercnt  from  the  one  in  fact  made.  It  made  the  defendant 
only  liable  when  a  note  or  memorandum  of  the  bargain  signed 
b\'  himself  was  produced  at  the  trial. 

If  produced  from  the  defendant's  own  custody,  it  guards 
against  the  mischief  that  the  statute  was  passed  to  prevent,  just 
as  well  as  if  produced  from  the  custody  of  the  plaintiff.  The 
plaintiff  is  the  one  likely  to  suffer  by  leaving  the  evidence  of 
his  bargain  in  the  hands  of  the  defendant — not  the  defendant 
himself. 

The. statute  of  frauds  is  an  English  statute,  and  in  the  absence 
of  any  express  adjudication  of  our  own  court,  we  naturally 
look  to  the  English  courts  as  the  best  expounders  of  their  own 
statute,  and  gather  from  them  the  principles  which  should 
guide  us  in  construing  it. 

In  the  case  of  Gibson  v.  Holland,  i  Law  Reports,  C.  P.  i, 
the  only  note  or  memorandum  of  the  bargain  was  a  letter 
addressed  by  the  defendant  to  his  own  agent;  the  court  decided 
that  to  be  sufficient,  and  Erie,  C.  J.,  in  delivering  his  opinion, 
said : 

"But  the  objection  relied  on  is,  that  the  note  or  memoran- 
dum of  that  contract  was  a  note  passing  between  the  defend- 
ant, the  party  sought  to  be  charged,  and  his  own  agent,  and 
not  between  the  one  contracting  party  and  the  other. 

'•The  object  of  the  statute  of  frauds  was  the  prevention  of 
perjury  in  the  setting  up  of  contracts  by  parol  evidence,  which 
is  easily  fabricated.  With  this  view,  it  requires  the  contract  to 
be  proved,  by  the  production  of  some  note  or  memorandum   in 


43<'j       MUliES  OF   OllTAINlNC;    11  ll.K  TO  riCltSON  AI,  IMtOlMUtTV. 

vvvilliir;.  Now,  a  note  or  mcmoranduni  is  equally  conobor: 
tivc,  wlicthcr  it  passes  between  the  parties  to  the  contract  then 
selves,  or  between  one  of  them  ami  his  own  agent.  Indeec 
one  would  incline  to  think  that  a  statement  nuule  by  the  part 
to  his  own  agent,  would  be  the   more    satisfactory  evidi  ncc   ( 

the  two." 

In  Johnson  v.  Dodgson,  2  Mccson  it  VVelsby,  653,  tl 
defendant  made  the  note  ot  the  sale  in  his  own  booiv,  and  g( 
the  agent  of  the  plaintiff  to  sigu  it,  and  the  defendant  retaint 
the  book  in  his  own  possession. 

It  was  held  by  the  court,  that  the  note  or  memorandum  w; 
sufHcient,  and  the  plaintiff  recovered.  Xo  notice  appears 
have  been  taken  by  the  court,  in  iheir  opinion,  of  the  fact  th 
the  memorandum  had  not  been  delivered,  but  had  been  rctaini 
pos.session  of  by  the  defendant.  Hut  in  the  argument  of  t 
case,  counsel  of  defendant  said:  "Suppose  tl-.e  defendant  h; 
simply  made  a  memorandum  in  his  own  book,  that  on  such 
day  the  plaintiff  sold  to  him;  would  that  be  suflicient?"  '\ 
which  Parke,  J.,  replied,  "If  he  meant  it  to  be  a  memorandu 
of  a  contract  between  the  parties,  it  would." 

From  these  authorities,  and  the  reasons  upon  which  they  wc 
decided,  wc  are  of  opinion  that  delivery  is  not  essential  to  t 
validity  of  the  note  or  memorandum  of  sale. 

The  next  <iucstion  which  arises  is,  whether  the  note  or  me 
orandum  in  this  case  is  signed  by  the  defendant.'  The  note 
in  these  words:  "Oflice  of  Drury,  Ijams  &  Rankin,  Who 
sale  and  Retail  Grocers,  and  Dealers  m  Flour,  Feed,  and  F 
tili/ers.  Cor.  Gay  and  High  streets.  E.  T.  Drury,  VV. 
Ijams,  Jr.,  S.  M.  Rankin,  Jr.  Baltimore,  Aug.  37th,  iS! 
Sold  W.  H.  H.  Young  &  Co.,  3,500  cans,  say  5,000  doz. 
C.  C.  tomatoes,  dt  $1.10  p'r  doz.  cash  ;  cars  at  Fhila.  Dep 
Balto.,  Md.  5,000  dozen  &.  $i.ioc.,  $5,500.00."  It  appe 
that  all  the  words,  preceding  the  words,  "Baltimore,  Aug 
37th,  18S1,"  were  printed,  and  that  the  printed  part  wai 
letter  head,  and  the  written  portion  under  the  heading.  1 
names  of  the  defendants  being  in  print,  and  at  the  beginning 
the  note,  the  question  is,  whether  it  is  sufficient  signing? 

It  is  entirely  immaterial  in  what  part  of  the    instrument 
name  of  the  party  to  be  charged  appears,  if   it   is   put  there 
him,  or  by  his  authority,     liigdon  v.  Thomas,  i  H.  &  G.  i 


riCItSONAI,   IMtOlMUlTV. 

Iiiin  is  (.-qiially  corrobora- 
artics  to  tlie  contract  tliem- 
liis  own  ajjeiit.  Indeed, 
cnient  n^ade  Ity  tlie  party 
;    satisfactory  evidincc   of 

ion  &.  Welsby,  653,  the 
n  iiis  own  hooiv,  and  j^ot 
ml  the  defendant  retained 

lOtc  or  memorandum  was 
Xo  notice  appears  to 
ir  opinion,  of  the  fact  that 
ercd,  but  had  been  retained 
t  in  the  ar<^ument  of  tlie 
Suppose  tl-.e  defendant  had 
)wn  book,  that  on    such    a 

that  be  sufficient?"  To 
uit  it  to  be  a  memorandum 
would." 

asons  upon  which  they  were 
very  is  not  essential  to  the 

of  sale. 

whether  the  note  or  mcm- 
le  defendant?     The  note  is 
Ijams  &  Rankin,    Whole- 
•s  m  Flour,  Feed,  and   Fer- 
s.     E.   T.    Drury,  VV.    II. 
timore,   Aug.    37th,    iSSi. 
lO  cans,  say   5,000  doz.   C. 
ash  ;  cars  at  Phila.     Depot, 
:.,  $5,500.00."     It  appears 
ords,   "Baltimore,    August 
lat  the  printed   part  was  a 
1  under   the  heading.      The 
•int,  and  at  the  beginning  of 
:  is  sufficient  signing? 
part  of   the    instrument   the 
pears,  if   it   is   put  there   by 
V.  Thomas,  i  H.  &  G.  152. 


MtlKV    \  .    M)IN<;. 


•1:^/ 


The  decision  of  our  court  settles  the  (luestinn  tliat  tlie  place 
of  the  signature  in  the  memorandum  is  immaterial,  ami  the 
Hnglish  cases  arc  ei|ually  empiiatic,  that  the  name  may  as  will 
be  printed  as  written,  if  the  printed  name  is  adopted  liy  the 
party  to  be  chargeil. 

In  Schneider  v.  Xorris,  2  Maule  k  Selwyn,  jSf).  Lonl  I'^ilen- 
borough  decided,  that  the  appropriation  and  recognition  of  a 
jirinted  name  was  sutlicicnt. 

It  is  therefore  a  sufficient  signing,  if  the  name  be  in  ])rint, 
and  in  any  part  of  the  instrument,  provided  that  the  name  is 
recognized  and  appropriated  by  the  party  to  be  his.  The  note 
or  memorandum  in  this  case,  upon  its  face,  contains  all  the 
necessary  terms  of  a  complete  bargain. 

The  names  of  the  vendors  and  purchasers,  the  (piantity  and 
tiuality  of  the  goods  contracted  for,  the  price  at  which  they 
were  sold,  and  the  terms  of  sale,  and  the  place  of  delivery,  are 
all  clearly  expresed  therein,  and  make  a  sulhciently  good  mem- 
orandum required  by  the  statute. 

If  the  above  mentioned  memorandum  was  insufficient  of 
itself,  the  following  letter  addressed  by  defendants  to  plaintiff, 
and  which  sufficiently  refers  in  its  terms  to  the  former  note  or 
memorandum,  would  certainly  be  sufficient  when  taken  in  con- 
nection with  it,  to  take  this  case  out  of  the  statute:  "Office  of 
Drury,  Ijams  it  Raiddn,  Wholesale  and  Retail  Grocers,  and 
Dealers  in  Flour,  Feed,  and  Fertilizers,  Cor.  Gay  and  High 
vStrects.  E.  T.  Drury,  W.  II.  Ijams,  Jr.,  S.  M.  Rankin,  Jr. 
Baltimore,  Aug.  39th,  18C1.  Mess.  W.  II.  II.  Young  &  Co.: 
Gents: — We  regret  to  say,  it  'u  impossible  for  the  Chase's  Can- 
ning Co.  to  furnish  the  2,500  cases,  3  C  tomatoes  purchased  of 
us  on  27th  inst.,  at  $1.10  per  dozen.  Nor  do  we  think  it  pos- 
sible to  fill  order  this  season,  as  the  fruit  can  not  be  procured. 
Hoping  this  may  be  entirely  satisfactory.  We  are  very  respect- 
fully, Drury,  Ijams  iS:  Rankin."  There  is  no  dispute  as  to  the 
signature  of  the  defendants  to  the  letter,  or  that  it  was  addressed 
to  the  plaintiff,  and  without  the  aid  of  any  parol  evidence  it 
can  easily  be  connected  with  the  memorandum  of  27th  xVugust, 
iSSi. 

That  the  letter  refers  to  the  same  bargain  or  sale  that  the 
memorandum  does,  is  sufficiently  shown  upon  the  face  of  it,  as 
it  mentions  the  same  sort  of  goods,  the  same  quantity  and  price, 
and  refers  to  the  same  date. 


4v'>     M<Ji'Ks  t)i'  diii-aimm;  iiii.i:  ro  i-eu^on  \i.  I'lton: u  i v. 

The  two  pnpiT-^caii  tlicti  hf  cuiiiiciU'il  s\  ith  suiriciont  cor 
tiiinty.  witlioiit  the  aiil  of  any  extrinsic  evidence,  and  tojjetlie 
nialic  a  niemoran(hnn.  meeting  the  rciiuircments  of  the  statute 
even  if  the  memorandum  <>f  sale  itself  were  insiitVicient. 

We  have  then  a  sullicient  note  or  memorandum  of  a  l)ar'rair 
provided  the  jury  were  satislicd  that  an  antecedent  parol  hai 
jrain,  substantially  agreeing'  with  the  said  note  or  memoranduir 
had  heen  made  between  plaintiff  and  defendants. 

Whether  such  antecedent  parol  bar<j;ain  had  been  made  ci 
not,  was  for  the  jury  to  decide,  and  it  was  also  for  the  jury  t 
determine  the  <iuestion,  whether  the  printed  names  wei 
adopted  and  appropriated  by  the  defendants  as  theirs,  as  we 
as  the  fact  of  the  memorandum  being  the  act  o£    their   autho; 

ized  agent. 

There  are  eighteen  prayers  in  the  record,  many  of  them  vvil 
shades  of  difference,  so  nice,  that  it  is  dilbcult  for  any  oik 
except  the  drawer,  to  see  in  wiiat  the  difference  consists.  Tl 
first,  sixth,  seventh,  twelfth,  thirteenth,  and  fourteenth  praye 
of  the  defendants  relate  to  the  insntlicicncy  of  the  memorai 
dum,  considered  in  itself,  and  from  what  we  have  already  sai- 
were  properly  rejected.  The  fifteenth  prayer  of  the  defcn 
ants  as  to  a  variance  between  the  oral  bargain  and  the  mem 
randum  was  substantially  covered  by  the  eighteenth  and  iiin 
teenth  prayers,  which  were  granted,  and  its  refusal  is  thereto 
no  ground'of  reversal.  The  second  prayer  of  the  defendar 
was'' properly  refused.  The  issue  in  this  case  was  wheth 
there  was  a  contract  upon  which  the  plaintiff  and  defendar 
had  agreed,  but  there  is  no  issue  involving  the  fact  of  negoti 
tions  only,  and  the  withdrawal  of  the  defendants  from  su 
negotiations,  and  the  terms   of  the  prayer   were  calculated 

mislead  the  jury. 

The  objections  of  the  defendants  to  the  testimony  offered 
the  second  bill  of  exceptions  ought  to  have  been  sustained ;  t 
as  it  does  not  appe.ir  what  evidence  the  parties  asked   gave, 
any,  the  error  does  not  furnish  sufiicient  ground  for  reversal. 

The  evidence  objected  to  in    the    defendants'    third    bill 
exceptions,  w.is  admissible. 

In  a  mercantile  transaction,   where  the   terms  of    a   writt 
instrument  are  technical  or  equivocal  on  its  face,  oral   evider 
is  admissible  to  explain  the  commercial  usage.     Williams 
Woods  &  Bridges,  i6  Md.  220. 


I'EUSON  \I.    I'UOl'CUTV. 

(.toil  svith  MilUcii'iit  ci-r- 
c  evidence,  and  tojjt-tlier 
quirements  of  the  statute, 
i  were  insiitVicient. 
umoraiidiiin  of  a  harf^'ain, 
an  antecedent  parol  luir- 
saiil  note  or  meinorandiiin, 

defendants. 

irjj;ain   liad   I'een   made   or 
t  was  also  for  tlie  jury    to 

the  printed  names  were 
>n<lants  as  theirs,  as  well 
;  the  act  o£   their   author- 

ecord.  many  of  them  with 
t  is  dillicult  for  any  one, 
}  difference  consists.  The 
th.  and  fourteenth  prayers 
Hcicncy  of  tlie  menioran- 
,vhat  we  have  already  said, 
ith  prayer  of  the  <lefend- 
d  barfj;ain  and  the  memo- 
y  tile  eiyliteenth  and  nine- 
and  its  refusal  is  therefore 
prayer  of  the  defenilants 
in  this  case  was  whether 
e  plaintiff  and  defendants 
olving  the  fact  of  negotia- 
the  defendants  from  such 
prayer   were  calcidated  to 

to  the  testimony  offered  in 
o  have  been  sustained  ;  but 
the  parties  asked  gave,  if 
ient  ground  for  reversal, 
defendants'    third    bill    of 

re  the  terms  of  a  written 
il  on  its  face,  oral  evidence 
ercial  usage.     Williams  v. 


IliaitV    V.    VlMNC. 


439 


: 


The  ciucstion  presented  hy  tlie  defendants'  llrsl  bill  cpfesiep- 
tionshas  been  an^iied  liy  his  enimscl  with  great  lorce  and  aMli- 
tv.  both  upon  ri'ason  and  authority.  NVe  must,  Imsvever. 
dicline  to  express  an  opinion  upon  the  subjeet-matti  r  of  that 
exception,  for  tiie  very  obvious  reason  tiiat  no  decisinn  that  we 
could  now  inaUi'.  upon  the  (juestion  presented  in  the  exception, 
could  have  any  effect  upon  this  e.ise. 

I'he  ciuestioii  jjiesonted  l>y  the  tlrst  exception  was  whetlier 
the  court  below  were  warranted  in  ordering  tlie  production  of 
tlie  paper  mentioned  therein,  against  the  protest  and  objection 
of  the  defendants.      iUit  they  did  produce  tlie  paper. 

It  may  l)e  that  the  defendants  are  right  in  their  hypothesis, 
and  that  the  court  below  were  in  error  in  onKring  Its  produc- 
tion, and  that  it  has  properly  no  place  in  this  record.  Uut  it  is 
ill  this  record,  and  we  have  no  power  toeliininate  it  therefroiii. 
The  plaintiff  has  already  receivi'd  the  beiietlt  from  the  pro- 
duction of  the  jiaper,  and  we  know  of  no  way  in  which  we  can 
now  deprive  him  of  that  benefit. 

We  would  be  unable,  by  a  reversal  of  this  judgment  and  send- 
ing the  case  back  for  trial,  to  place  the  defendants  in  the  same 
situation  that  thev  were  l)efore  they  produced  the  paper.  I>y 
their  own  act  thev  have  rendereil  tliat  impossible.  For  the  pur- 
])ose  of  this  ease,  the  paper  is  no  longer  a  private  paper,  but  is 
in  the  possession  of  the  court  and  jury,  and  has  been  duly 
delivered  to  tiiem  by  the  defendants,  and  in  their  possession, 
for  all  the  purposes  of  this  suit,  it  must  now  remain.  It  was  at 
tlie  option  of  the  defendants  to  have  refused  to  produce  the 
paper  at  the  trial,  and  take  the  risk  of  a  judgment  by  default, 
if  the  court  below  should  have  determined  to  render  one  against 
them,  and  upon  an  appeal  from  such  judgment  the  question 
would  have  been  properly  before  us.  Judgment  alhrmed. 

That  meiiioraiulum  need  not  be  delivered.  Conhclt— Feabody  v. 
Spyers,  sON.  Y.  220;  Argus'Co.  v.  Albany,  55  N.  Y.  495,  14  Am.  Rep. 
::<)6;  Johnson  v.  Trinity  Church,  11  Allen,  123;  Kleeman  v.  Collins,  9 
Jiiish.  417;  Moore  v.  Mountcastle,  61  Mo.  424.  As  to  mode  of  signing 
see:  Mci:iroy  v.  Seevy,  61  Md.  3S9,  4S  Am.  Rep.  no;  Ivory  v.  Murphy, 
,Vi  Mo.  534;  Boardman  v.  Spooner,  13  Allen,  353;  Brayley  v.  Kelly,  25 
Minn.  160;  Sanborn  v.  Flagler,  9  Allen,  473;  Merchants  Bk.  v.  Spicer,  6 
Wend.  443;  Brown  v.  Butchers'  Bk.,  6  Hill,  443,  41  Am.  Dec.  755; 
Augur  V.  Couture,  6S  Me.  427;  }lawkins  v.  Chase,  19  Pick.  502;  James 
v.  Patten,  6  N.  Y.  9,  55  Am.  Dec.  276. 


■ 


440       MOD.:i:S  OF   OBTAINING  TITLE  TO   I'EltSONAI-  PUOI'ERT: 

§  81.  San::  e— Oral  evidence  to  connect  several  docurc 

OLIVER  V.  HUNTING. 

[44  Ch.  Div.  205.] 

English  High  Court,  Chancery  Division,  i8go. 

In  August,  iSSS,  Emma  Oliver,  a  married  woman,  posi 
o£  considerable  separate  estate,  negotiated  with  a  Mr.  Hi 
for  the  purchase  of  a  freehold  property' known  as  tho  F 
Manor  House  estate.  Eventually  she  agreed  to  pu. chase 
two  thousand,  three  huiulretl  and  seventy-five  pounds,  a 
the  seventh  of  September,  188S,  he  signed  the  following 

ment: 

"Memorandum  of  terms  of  agreement  between  Mr.  Hi 
and  Mrs.  Oliver:  Price  two  thousand,  three  hundre 
sev<-  -ty-ilve  pounds.  Vendor  to  make  good  title.  Pnr 
to  pay  for  her  own  conveyance.  Fixtures  included  in  pur 
Purchase  to  b."^  settled  as  soon  as  possible.  Possess 
twenty-fifth  of  September.  Deposit  to  be  paid  on  the  t( 
On  the  twelfth  of  September,  iSSS,  Mr.  Hunting  ,vro 
sent  a  letter  to  Mrs.  Oliver  in  the  following  words: 

"I  beg  to  acknowledge  receipt  of  check  value  three  hi 
and  seventy-five  pounds  on  account  of  the  purchase  mor 
the  Fletton  Manor  House  estate." 

Mr.  Hunting  having  refused  to  complete,  Mrs,  Olive 
mencfd  this  action  against  him,  claiming  specific  perfor 
of  the  contract  of  the  seventh  of  September,  1SS8,  and  al 
in  her  statement  of  claim  that  in  pursuance  of  the  said  C( 
she,  on  the  tenth  of  September,  1SS8,  paid  to  Mr.  Hunti 
sum  of  three  hundred  and  seventy-five  pounds  as, a  depo 
in  part  payment  of  the  said  purchase-money,  and  subi 
that  the  memorandum  of  th-;  seventh  and  the  letter 
twelfth  of  September,  1SS8,  formed  a  valid  contract 
sufficioit  memorandum  within  the  statute  of  frauds. 

Mr.  Hunting,  by  his  statement  of  defense,  did  not  adr 
of  the  allegations  in  tl;  statement  of  chum,  and  relied 
statute  of  frauds.  Issue  was  joined.  This  was  the  trial 
action. 


Hi 


WM 


i  TO   l'Ell.SO\AL  PROPERTV. 

t  connect  several  documents. 
HUNTING. 

iv.  205.] 

'.n;/cciy  Division,  i8go. 

;r,  a  married  woman,  possessed 
legotiated  with  a  Mr.  Hunting 
ropcrty' known  as  tlio  Flatten 
y  she  agreed  ^o  pui chase  it  for 
I  seventy-Pve  pounds,  and  on 
he  sisncd  the  following  docu- 

rcement  between  Mr.  Hunting 
thousand,  three  hundred  and 
>  make  good  title.     Purchaser 

Fixtures  included  in  purchase, 
m  as  possible.  Possession  o-i 
3Dsit  to  be  paid  on  the  tenth." 

iSSS,   Mr.   Hunting  .vrote  and 
e  following  words : 
t  of  check  value  three  hundred 
unt  of  the  purchase  money  for 

0  complete,  Mrs.  Oliver  corn- 
claiming  specific  performance 
September,  1SS8,  and  alleging 

1  pursuance  of  the  said  contract 
iSSS,  paid  to  Mr.  Hunting  the 

ty-five  pounds  as  a  deposit  and 
rchase-money,  and  submitting 
seventh  and  the  letter  of  the 
formed  a  valid  contract  and  a 
he  statute  of  frauds, 
it  of  defense,  did  not  admit  any 
;nt  of  chum,  and  relied  on  the 
ined.     This  was  the  trial  of  the 


OLIVER    V.  HUNTING. 


441 


Mrs.  Oliver  in  her  evidence  deposed  that  she  sent  the  check 
of  three  hundred  and  seventy-tive  pounds,  mentioned  in  the 
letter  of  the  twelfth  of  September,  on  account  of  the  purchase- 
money  of  the  Fletton  Manor  House  estate.  It  was  part  of  the 
two  thousand,  three  hundred  and  seventy-five  pounds.  No 
other  money  was  payable  by  her  to  the  defendant.  The  three 
hundred  and  seventy-five  pounds  was  the  balance  that  Mr. 
Hunting  was  to  receive,  because  the  two  thousand  pounds  was 
to  be  paid  over  to  a  mortgagee  of  the  property.  Her  solicitor, 
Mr.  Law,  was  going  to  find  the  two  thousand  pounds  for  her. 

Kekkwich,    J. — The   elementary   proposition    about    which 
there  is  no  doubt  is  this — the  memorandum  to  be  signed  by  the 
party  sought  to  be  charged,    so   as    to    bring   a   particular  case 
within  the  statute  of  frauds,  need  not  be  on  one  piece  of  paper, 
nor  need  it  be  a  complete  document,  signed  by  the  party  at  one 
and  the  same  time.     It  may  be  contained  in  two  or  more  pieces 
of  paper,  but  they  must  be  so  connectc.l  that  you  can  read  them 
together,    so    as    to    form    one    memorandum    of   the   contract 
between  the  parties.     Directly  you  get  beyond  that,  you  get 
into  difliculty.      One  can  illustrate    thac  in  a  simple    manner. 
An  intending  purchaser  accepts  an  offer  made  by  a  proposing 
vendor    thus:      "In    reply    to    your    letter    of    tlie    fourteenth 
instant."     Can  one  annex  to  that  reply  the  letter  of  the  four- 
teenth  instant.''     Surely  one   can  not,   without  inquirinji;  what 
letter  it  is;   unless  the  purchaser  has,   with  unusual  prudence, 
completed  the  reference  by  saying,  "In  reply  to  your  letter  of 
the  fourteenth  insta.)t,  a  copy  of  which  is  on  the  other  side." 
In  the  absence  of  any  such  complete  evidence  as  that,  one  iiniit 
inquire  what  the  letter  of  the  fourteenth  instant  was,   because 
lion  constat,  it  may  have  been  a  reference  to  any  one  of  half  a 
dozen  different  letters;   and  so,  from  that  very  simple  illustra- 
tion, one  can  go  through, a  large  variety  of  mor--  complex  ones. 
It  is  not  for  me  to  say  that  the  old   aile   was   better    or    worse 
than  the  present  rule;  but  that  it  wis  a  different  rule,  notwith- 
standing the  criticisms   in   the    cases    which    Mr.    Neville    has 
given  me,  1  have  no  doubt.     I  take  the  old  rule  from  the  orig- 
inal edition  of  Lord  Blackburn,  on  tlie   contract  of  sale,  which 

is  cited I  have  not  the  original  work  before  me — by  Williams, 

J.,   in  Railway  Co.   v.    Peek,    E.   B.  cS:  E.  loor.  where,  after 


HRS^ 


442       MODES  OF  OnTAlMNG  TITLE  TO  PEUSONAL  PROPERTV. 

referring  to  Ilinde  v.  Whitchouse,  7  East,  55S,  and  Kenvvorth; 

V.   Schofield,   3   B.  &.  C.  945,  he  says:      "The  principle  o 

these  cases  seem  to  me  to  be  well  stated  in  the  same  work  b; 

my   Brother  Blackburn,  as   follows:      "If  the  contents  of  th 

signed  paper  themselves  make  reference  to  the  others  so  as  t 

show  by  internal  evidence  that  the  papers  refer  to  each  othei 

they  may  be   all  taken  together  as  one  memorandum  in  wril 

ing'  "  (as  in  the  case  which  I  have  mentioned  of  a  letter  refei 

ring  to  a  previous  letter,  of  which  the  copy  is  annexed);   "bi 

if  it  is  necessary,  in  order  to  connect  them,  to  give  evidence  c 

the    intention    of    the   parties  that   they   should  be   connectet 

shown  by  circumstances  not  apparent  on  the  face  of  the  wri 

ings,    the  memorandum   is   not   all    in  writing,    for  it  consis 

partly  of  the  contents  of  the  writings  and  partly  of  ti  u  expre 

sion  of  an  intention  to  unite  them,  and  thai       ]ii\.ssion  is  m 

in  writing."     The  old  case  of  Boydell  v.  Drummond,  11  Eas 

142,  and  some  other  cases,  might  be  consistent  with  that  rule 

but  certainly  of  late  a  different  rule  has  bee"    introduced,  ar 

it  is  a  rule,  to  say  the  least,  consistent  with  the  convenience  ( 

mankind,  because  if  you    were   to  exclude   parol    evidence   I 

explain  such  a  doubtful  reference  as  "the  letter  of  the  fourteen! 

instant,"  or  it  might  be  simply  "your  letter,"  the  rei^uli  ir.igl 

in  a  large  number  of  cases  be  gross  injustice.     Nov  1  ^   :e 

to  be  quite  settled  that  in  a  case  of  that  kind  you  may  gi> 

parol  evidence  to  show  what  the  document  referred  to  was. 

take  it  that  you  may  go  further  than  that,  and  that  if  you  find 

reference  to  something,  which  may  be  a  conversation,  or  mi 

be  a  written  document,  you  may  give  evidence  to  show  wheth 

it  was  a   conversation   or   a  written    document;    and,   havii 

proved  that  it  was  a  written  document,  you  may  put  that  wr 

ten    document   in  evidence,   and    so   connect   it   with    the   o 

already   admitted   or    proved.     So   far  there    is    no    difficult 

That  was  applied  in  the  case  of  Ridgway  v.  Wharton,  6  H. 

C.  23S,  where  the  question  was  on  the  meaning  of  instructio 

which  did  not  by  any  means  necessarilv  pomt  to  a  written  doc 

ment :   but  later  the  cases  have   gone  further  than  that,  and 

seems  to  me  that  Long  v.  Millar,  4  C.  P.  D.  450  followed 

Field,  J.,  in  Cave  v.  Hastings,  7  Q.  B.  D.  125,  does  establi 

a  very  much  larger  series  of  exceptions.     In  Long  v.  Millar 

profess  myself  rather  embarrassed  by  the  juctginent  of  Thesig 


PERSONAL  PROPERTY. 

East,  55S,  and  Kenworthy 
lays:      "The  principle  of 
ted  in  the  same  work  by 
"If  the  contents  of  the 
;nce  to  the  others  so  as  to 
lapcrs  refer  to  each  other, 
nc  memorandum  in  urit- 
lentioned  of  a  letter  refei- 
le  copy  is  annexed);   "but 
them,  to  give  evidence  ol 
ley   should  be   connected, 
nt  on  the  face  of  the  writ- 
in  writing,    for  it  consists 
3  and  partly  of   '    0  expre^- 
and  that       pn  .ssion  is  not 
;11  V.  Drummond,  11  East, 
consistent  with  that  rule; 
has  bee-    introduced,  and 
It  with  the  convenience  ol 
;xclude   parol    evidence   to 
'the  letter  of  the  fourteenth 
r  letter,"  the  re  viU  ir.ight 
1  injustice.     No  v  1  f^iike  it 
f  that  kind  you  may  give 
:ument  referred  to  was.     I 
that,  and  that  if  you  find  a 
be  a  conversation,  or  may 
e  evidence  to  show  whether 
1    document;    and,   having 
;nt,  you   may  put  that  writ- 
connect   it  with    the   one 
far  there    is   no   difficulty. 
Igway  v.  Wharton,  6  H.  L. 
the  moaning  of  instructions 
irilv  pomt  to  a  written  docu- 
le  further  than  that,  and  it 
C.  P.  D.  450  followed  by 
.  B.  D.  125,  does  establish 
ons.     In  Long  v.  Millar,  I 
y  the  juugment  of  Thesjger^ 


r 


OLIVER    V.    mNTING. 


445 


L.  J. that  is  to  say,  I  am  unable  quite  to  understand  what  he 

means  by  the  passages  on  page   456,  which  seem   to  me  rather 
iuconsistont;   but  seeing  that  1  have  the  judgments  of  liramwcU 
and  Baggalla    .  L.  T-  J-,  without  the  slightest  doubt  or  embar- 
rassment, and  thr .   rhesiger,  L.  J.,   concurred   in  their  judg- 
ment,   I    think    I    may    put  any   difficulty   of  that  kind   aside. 
Bramwell,  L.  J.,  gave  a  judgment  which,  beyond  its  reference 
to  the  particular  case,  is  exceedingly  useful  as  illustrating  this 
branch  of  law;  because  he  gives  an  illustration  which  seems  to 
me  to  go  to  the  root  of  the  mattor.     The  illustration  he  gives  is 
this  (Long  V.  Millar,  4  C.   P.    D.   454):     "Suppose  that  A. 
writes  to  B.,  saying  that  he  will  give  one  thousand  pounds  for 
B.'s  estate,  and  at  the  same  time  states  the  terms  in  detail,  and 
suppose  that  B.  simply  writes  back  in  return,  'I  accept  your 
offer.'     In  that  case  there  may  be  an  identification  of  the  doc- 
uments by  parol  evidence,  and  it  may  be  shown  that  the  offer 
alluded  to  by  B.,  is  that  made  by  A.,  without  infringing  ihe  stat- 
ute of  frauds,  section  4,  which  requires  a  note  or  memorandum 
in  writing."      If  that  is  sound,  which  I  take  it  to  be,  according 
to  other  cases,  and  according  to  the    convictions   of  judges  in 
older  cases  which  are  introduced  into  the  old  law,  it  is  difticult, 
perhaps,  to  say  where  parol  evidence  is  to  stop ;    but  sulistan- 
tiall)  it  never  stops  short  of  this,  that  wherever  parol  evidence 
is  required   to  connect  two  written  documents  together,    then 
that  parol  evidence   is   admissible.     You    are    entitled    to   rely 
upon  a  written  document,    which    requires    explanation.     Per- 
haps the  real  principle  upon  which   that   is   based   is,  that  you 
are  always  entitled  in  regarding  the  coi  .^ruction  and  meaning 
of  a  written  document  to  inquire  into  the  circumstances  under 
which  it  was  written,  not  in  order  to  find  an  interpretation  by 
the  writer  of  the  language,  but  to  ascertain  from  the  surround- 
ing facts  and  circumstances  with  reference  to  what,    and  with 
what  intent,   it  must    hav.e   been    written.     I  think  myself  that 
must  be  the  principle  on  which  parol  evidence  of  this  kind  is 
admitted.     Turning  to  the  case  before  me,  I  find  a   etter  of  the 
twelfth  of  September,  188S,   written  by  the  defendant  to  Mrs. 
Oliver;   and  in  that  he  says:      "I  beg  to  acknowledge  receipt 
of  check,   value   three  hundred   and   seventy-five   pounds,   on 
account  of  the  purchase-money  for  the  Fletton  Manor  House 


444       MODES  OK  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 


estate,  for  which  I  thank  you."  I  have  two  things  here  p 
fcctly  clear,  that  there  is  a  property  called  Fletton  Mai 
House  estate,  which  constitutes  the  subject  of  a  purchase,  ai 
therefore,  the  subject  of  a  sale.  I  have  also  that  three  hundi 
and  seventy-five  pounds  is  part  of  the  purchase-money  for  t 
house ;  but,  beyond  that,  I  have  no  terras  of  a  contract.  I  i 
entitled  to  consider  the  circumstances  under  which  the  let 
was  written,  in  order  to  j^ive  any  meaning  that  I  properly  ( 
to  it — not  to  add  terms  to  it,  but  to  find  out  whut  the  mean 
necessarily  must  be,  having  regard  to  the  facts  and  ciicu 
stat'.ces — and,  having  got  the  evidence  which  I  have  in  t 
case,  the  conclusion  is  inevitable  that  it  refers  to  a  previi 
memorandum  of  terms  of  agreement  under  which  M 
Oliver  becomes  the  purchaser  of  this  particular  property 
the  price  of  two  thousand,  three  hundred  and  seventy-f 
pounds,  on  account  of  which  the  check  for  three  hundred  i 
seventy-five  pounds  was  sent.  Having  got  that  evidence 
having  got  the  connection  between  the  two  documents,  I  hi 
then  enough  to  enable  me  to  read  the  two  documents  togetb 
and,  reading  them  together,  I  have  a  distinct  memorandum 
contract,  specifying  all  the  terms,  the  second  one  supply 
what  the  first  one  omitted  to  give,  namely,  singularly  enou: 
the  property  which  was  intended  to  be  purchased  and  sc 
That  being  so,  the  objection  that  there  is  no  memorand 
w  ithin  the  statute  of  frauds  fails. 

I  have  not  referred  to  the  late  case  of  Studds  v.  Watson, 
Ch.  D.  305,  before  Mr.  Justice  North,  because  I  am  not  qi 
sure  how  far  that  learned  judge  intended  to  go.  If  I  am  ri 
in  my  view  of  his  judgment,  that  he  only  allowed  the  pr 
agreement  to  be  proved  to  see  whether  it  connected  the  I 
written  documents,  and  then,  having  got  it  in  evidence,  fot 
that  it  did,  and  so  was  able  to  connect  the  two  documents- 
that  is  the  right  view,  which  I  believe  it  to  be,  of  what 
intended — then  it  really  follows  Long  v.  Millar,  4  C.  P. 
450,  and  Cave  v.  Hastings,  7  Q.  B.  D.  125,  to  both  of  wfc 
he  referred  in  his  judgment. 

Under  these  circumstances,  I  think  the  plaintiff  is  entitlec 
judgment  for  specific  performance,  and,  of  course,  to  the  c< 
of  the  action. 


O  PERSONAL  PROPERTY. 


HATCH    V.  OH.    COMPANY, 


445 


I  have  two  things  here  per- 
;rty   called    Fletton  Manor 

subject  of  a  purchase,  and, 
lave  also  that  three  hundred 
he  purchase-money  for  that 
ter>ns  of  a  contract.  I  am 
ces  under  which  the  letter 
leaning  that  I  properly  can 

find  out  what  the  meaning 
d  to  the  facts  and  ciicum- 
■nce  which  I  have  in  this 
that  it  refers  to  a  previous 
.MTient  under  which  Mrs. 
this  particular  property  for 

hundred  and  seventy-five 
leck  for  three  hundred  and 
iving  got  that  evidence  in, 

the  two  documents,  I  have 
lie  two  documents  together, 

a  distinct  memorandum  of 

the  second  one  supplying 
namely,  singularly  enough, 
to   be   purchased    and   sold. 

there  is  no   memorandum 

;e  of  Studds  v.  Watson,  28 
ith,  because  I  am  not  quite 
sndtd  to  go.  If  I  am  right 
he  only  allowed  the  parol 
lether  it  connected  the  two 
g  got  it  in  evidence,  found 
lect  the  two  documents — if 
elieve  it  to  be,  of  what  he 
)ng  V.  Millar,  4  C.  P.  D. 
B.  D.    125,  to  both  of  which 

ik  the  plaintiff  is  entitled  to 
and,  of  course,  to  the  costs 


U 


Coxsvi.T— Thayer  V.  Luce,  22  Ohio  St.  62;  Ross  v.  Allen,  45  K.an. 
62;  Frank  v.  Miller,  38  Md.  4()i ;  Tallm.".n  v.  Frann.lin,  14  N.  V.  5S4; 
Hrown  v.  Whipple,  58  N.  H.  J29;  Johnson  v.  Huck,  31;  N.  J.  (L,)  338, 
10  Am.  Rep.  743;  Beckwith  v.  Talbot,  95  U.  S.  2S9;  .Sanborn  v.  Fl.iijler, 
9  Allen,  474;  Salem  Falls  Mfg.  Co.  v.  Goddard,  14  How.  474;  Bojdell 
V.  Drummond,  11  East.  142. 


J.      T/ie  Transfer  of  Title. 
§  02.    Intention  of  parties  the  main  test. 
HATCH  V.  OIL  COMPANY. 
[100  U.  S.  124.] 
Supreme  Court  of  the    United  States,   iS'i?. 

Mr,  Ji'STicE  Clifford. — Contracts  for  the  purchase  and 
s;ile  of  chattels,  if  complete  and  unconditional  and  not  witlim 
the  statute  of  frauds,  are  sufficient,  as  between  the  parties,  to 
vest  the  property  in  the  purchaser,  even  without  delivery ;  the 
rule  being  that  such  a  contract  constitutes  a  sale  of  t!ie  thing, 
and  that  its  effect  is,  if  not  prejudicial  to  creditors,  to  transfer 
the  property  to  the  purchaser  against  every  person  not  holding 
the  same  under  a  iona  fde  title  for  a  valuable  consideration 
without  notice.  The  Sarah  Ann,  2  .Snmn.  211;  Gibson  v. 
Stevens,  8  How.  3S4,  399;  2  Kent,  Com.  [12  Ed.]  493; 
Leonard  '  .  Davis,  i  Black,  476-483. 

Nine  hundred  and  forty-four  thousand  white-oak  barrel- 
staves,  of  the  value  of  $17,500,  were  attached  by  the  defend- 
ant as  sheriff  of  the  county,  under  certain  processes  mesne  and 
final,  which  he  held  for  service  against  the  manufacturers  of 
the  staves,  to  secure  certain  debts  which  they  owed  to  their 
creditors.  No  irregularity  in  the  proceedings  is  suggested, 
but  the  plaintiffs  claimed  to  be  the  owners  of  the  staves  by  pur- 
chase from  the  manufacturers,  and  they  brought  replevin  to 
recover  the  property.  Service  was  made,  and  the  defendant 
appeared  and  demanded  a  trial  of  the  matters  set  forth  in  the 
declaration.  Issue  having  been  joined  between  the  partie':, 
they  went  to  trial,  and  the  verdict  and  judgment  were  in  favor 
of  the  plaintiffs.  Exceptions  were  filed  by  the  defendant,  and 
he  sued  out  the  present  writ  of  error. 


446     MonEs  OF  outaimno  titlk  to  i'ersoxal  propertv. 

Errors  assigned   in  the  court  are  as  follosvs:      First.     Tha 

the  court  erred  in  instructing  the  jury  that  as  soon  as  the  stave; 

were  piled  and  counted,  as  provided  in  the  second  agreement 

the  title  to  the  same  vested  in  the  plaintiff  company  as  vendee 

and  in  refusing   to  instruct  the  jury  that  the   only   interest  th( 

plaintiffs  acquired  in  the  staves  before  they  were  delivered  wa: 

as  security  for  advances  in  the  nature  of  a  mortgage  interest 

Sccoinl.     That  the  court  erred   in  refusing  to   instruct  the  jur; 

that,  if  there  was  no  actual  delivery  of  the  property  and  chaiig( 

of  possession,    the   agreement   of   sale   was   void  as  against  th( 

creditors  of  the  manufacturers,  because  not  recorded  as  recjuirec 

by  statute,      l^hird.     That    the    court    erred   in    refusing    t( 

instruct  the  jury  that  if  the  evidence  did  not  show  that  the  fift; 

thousand  staves  not  piled  on  the  leased  land  were  not  counted 

the  title  to  that  parcel  did  not  pass  to  the  plaintiffs  for  any  pur 

pose,  and  that  the  defendant,  as  to  that  parcel,  was  entitled  ti 

their  verdict.     Fourth.     That  the   court  erred   in   refusing  t 

instruct  the  jury  that  under  the  agreement  no  title  to  any  of  th 

staves  passed  to   the   plaintiffs  until  they  were  actually  places 

upon  the  leased  land  and  were  counted  by  the  designated  per 

son,  and  in  instructing  the  jury  that  the  title  to  the  staves  pild 

near  the  leased   land   passed   to   the   plaintiffs.     Fifth.      Thn 

the  court  erred  in   refusing  to  instruct  the  jury  that  no  title  t 

any  staves  passed  to  the  plaintiff  other  than  those  contracted  t 

be  sold  by  the   first   agreement,   and  that   if  the  jury  find  th? 

there    was    any  portion   of  the    staves   replevied    not    of   thf 

description,  that  as  to  such  portion  the  plaintiffs  are  not  ent; 

tied  to  recover.     Sixth.     That  the  court  erred  in  excluding  th 

testimony  offered  by  the  defendant,   as  s^t  forth  in  the  record 

Sufficient  appears    to    show    that   the  m.  uutu'^turers   of   th 

staves,  on  the  day  alleged,  contracted  with  t\\t  plamtiffs  to  sc 

them  one  million  of  white-oak  barrel-staves  of  certain  describe 

dimensions,   to  be  delivered  as  therein  provided,  for  the  pric 

of  $30  per   thousand,    subject   to  count   and   inspection  by  tli 

plaintiffs,  who  agreed  to   receive  and   pay  for  the  same  as  fa 

as  inspected.      But  before  the  staves  had  been  furnished,  to  wi 

on   the  twenty-eighth    of  August  in    the  same  year,    the  pa 

ties  entered  into  a  new  agreement  in  regard  to  the  staves,  i 

which  they  refer  to  the  prior  one,  and  stipulate  that  it  is  to  coi 

tinue  in  operatioi,   subject  to   modifications  made  in   the  ne 


PERSONAL  rnOPEIlTV. 

i  follows:  First.  That 
that  as  soon  as  the  staves 
in  the  second  agreement, 
intiff  co'Tipany  as  vendee, 
hat  the   only   interest  the 

thoy  were  dclivjretl  was 
,•  of  a  mortgage  interest, 
using  to  instruct  the  jury 
f  the  property  and  change 
I  was  void  as  against  the 
e  not  recorded  as  required 
rt  erred  in  refusing  to 
Jid  not  show  that  the  fifty 
xl  land  were  not  counted, 
the  plaintiffs  for  any  pur- 
hat  parcel,  was  entitled  to 
3urt  erred  in  refusing  to 
nent  no  title  to  any  of  the 
they  were  actually  placed 
ted  by  the  designated  per- 
le  title  to  the  staves  piled 
plaintiffs.  Fifth.  That 
ct  the  jury  that  no  title  to 
r  than  those  contracted  to 

that  if  the  jury  find  that 
es  replevied  not  of  that 
the  plaintiffs  are  not  enti- 
)urt  erred  in  excluding  the 
as  s^t  forth  in  the  record, 
the  m.  until '^.turers  of  the 
I  with  th"  plamtiffs  to  sell 
■staves  of  certain  described 
sin  provided,  for  the  price 
unt   and   inspection  by  the 

pay  for  the  same  as  fast 
had  been  furnished,  to  wit, 

the  same  year,  the  par- 
n  regard  to  the  staves,  in 
\  stipulate  that  it  is  to  con- 
n cations  made   in   the  new 


HATCH    V.   OH.    COMPANY. 


^147 


contract,  of  which  the  following  are  very  material  to  the  pres- 
ent investigation:  First.  That  the  manutailurers  shall  make 
and  deliver  the  staves  properly  piled  in  some  convenient  place, 
to  be  agreed  between  the  parties,  on  land  in  Deerlield.  to  be 
controlled  by  the  plaintiffs,  and  that  the  delivery  shall  be 
made  as  fast  as  the  staves  are  sawed.  Second.  That  the 
plaintiff  shall  furnish  a  man  to  count  the  staves  from  week 
to  week  as  the  same  shall  be  piled.  Third.  That  when 
the  staves  shall  be  so  piled  and  counted,  the  person  count- 
ing the  same  shall  give  the  manufacturers  a  certificate  of  the 
amount,  which,  when  presented  to  the  plaintiffs,  shall  enti- 
tle the  party  to  a  payment  of  $17  per  thousand  as  part  of 
the  purchase  price.  Fourth.  That  upon  the  piling  and 
counting  of  the  staves  as  provided,  "the  delivery  of  the 
same  shall  be  deemed  complete,  and  that  said  staves  shall 
then  become  and  thenceforth  be  the  property  of  the  plaintiffs 
absolutely  and  unconditionally. 

Other  material  modifications  of  the  first  agreement  were 
made  by  the  second,  some  of  which  it  is  not  deemed  neces- 
sary to  consider  in  disposing  of  the  case. 

Early  measures  were  adopted  to  perfect  the  arrangements,  as 
appears  from  the  fact  that  the  manufacturers,  October  4  in  the 
same  year,  leased  to  the  plaintiffs  a  small  tract  of  land  to  be 
used  for  piling  and  storing  the  staves;  and  the  case  shows  that 
all  the  staves  except  fifty  thousand  were  piled  on  that  site,  the 
fifty  thousand  staves  being  piled  on  land  owned  by  the  manu- 
facturers, about  one  hundred  or  one  hundred  and  fifty  feet  dis- 
tant from  the  pile  on  the  leased  tract,  on  which  were  certain 
buildings  owned  and  occupied  by  the  lessors,  the  mill  wneve 
the  staves  were  manufactured  being  situated  on  the  same  sec- 
tion a  little  distant  from  the  other  buildings.  None  of  the 
staves  were  manufactured  when  the  contracts  were  made. 

It  was  admitted  by  the  plaintiffs  that  the  lease  waa  never 
filed  in  the  clerk's  office,  and  that  it  was  never  recorded  in  the 
office  of  the  county  register  of  deeds.  Certain  admissions  were 
also  made  by  the  defendant,  as  follows:  That  the  parties  to 
the  contracts  acted  in  good  faith  in  making  the  same,  and  that 
the  contracts  and  lease  were  duly  executed ;  that  all  the  staves 
seizeil  were  manufactured  by  the  said  contractors,  and  that  all 
except  fifty  thousand  of  the  same  were  piled  on  the  leased  tract. 


44S       MODES  OF  OUTAININCJ  TITI.K  TO  PERSONAL  PUOPKKTY. 

Nothinfr  was  required   at  cmiimon  law  to   give  validity  to 

sale  of  pers<onal  property  except  the  mutual  asseut  of  the  pii 

tics  to  the  coutract.     As  soon  as  it  was  shown  by  compete 

evidence    that    it  was   agreed  by  mutual   assent  that  the   o! 

should  transfer  the  absolute  property  in  the  thing  to  the  oth 

for  a  money  price,  the  contract  was  considered  as  complete 

proven  and   binding  on  both   parties.     If  the   property  by  t 

terms  of  the  agreement  passed  immediately  to  the  buyer,  t 

contract  was  deemed  a  bargain  and  sale;  but  if  the  property 

the  thing  sold  was  to  remain  for  a  time  in  the  seller,  and  or 

to  pass  to  the   buyer  at  a   future  time  or  on  certain  conditio 

inconsistent    with    its    immediate    transfer,     the    contract  v 

deemed    an   executory   agreement.     Contracts  of  the  kind  i 

made  in  both  forms,  and  both  are  equally  legal  and  valid;  1 

the  rights  which  the  parties  acciuire  under  the  one  are  very  c 

ferent   from   those    secured    under    the    other.      Ambiguity 

incompleteness  of  language  in  the  one  or  the  other  frequer 

leads  to  litigation ;  but  it  is  ordinarily  correct  to  say  that  wh 

ever  a  controversy  arises  in  such  a  case  as  to  the  true  charac 

of  the  agreement,  the  question  is  rather  one  of  intention  tl 

of  strict  law,  the  general  rule  being  that  the  agreement  is  ; 

what  the  parties  intended  to  make  it,  if  the  intent  can  be  ( 

lected  from  the  language  employed,  the  subject-matter,  and 

attendant  circumstances. 

Where  the  specific  goods  to  which   the  contract  is  to  att 
are  not  specified,   the  ordinary   conclusion  is  that  the   pai 
only  contemplated  an  executory  agreement.     Reported  ci 
illustrate    and   confirm   that  proposition,   and   many  show 
where  the  goods  to  be  transferred  are  clearly  specified  and 
terms  of  sale,  including  the   price,   are    explicitly   given, 
property,  as  between  the  parties,  passes  to  the  buyer  even  v 
out  actual  payment  or  delivery:    2  Kent,  Com.  [12  Ed.]  ^ 
Tome  V.  Dubois,  6  Wall.  548,  554;  Carpenter  v.  Hale,  8  ( 
(Mass.),  157;  Martineau  v.  Kitching,  Law  Rep.  7  Q.   B. 
449;  Story,  Sales  [4  Ed.],  sec.  300. 

Standard  authorities  also  show  that  where  there  is  no  n: 
festation  of  intention,  except  what  arises  from  the  terms  of 
the  presumption  js,  if  the  thing  to  be  sold  is  specified  and 
ready  for  immediate  delivery,  that  the  contract  is  an  actual 
unless  there  is  something    in  the   subject-matter  or  atter 


I'liKSONAL  PUOPKUTV. 

I  law  to   give  validity  to  a 
mutual  assent  of  the  par- 
was  shown  by  competent 
utual   assent   that   the   one 
y  in  the  thing  to  the  other 
I  considered  as  completely 
s.      If  the    property  by  the 
lediately  to  the  buyer,  the 
sale ;  but  if  the  property  in 
time  in  the  seller,  and  only 
ne  or  on  certain  conditions 
ransfer,     the    contract  was 
Contracts  of  the  kind  are 
qually  legal  and  valid;  but 
under  the  one  are  very  dif- 
the    other.      Ambiguity   or 
one  or  the  other  frequently 
ly  correct  to  say  that  when- 
;ase  as  to  the  true  character 
rather  one  of  intention  than 
g  that  the  agreement  is  just 
!  it,  if  the  intent  can  be  col- 
,  the  subject-matter,  and  the 

ch  the  contract  is  to  attach 
)nclusion  is  that  the  parties 
igreement.  Reported  cases 
sition,  and  many  show  that 
are  clearly  specified  and  the 
;,  are  explicitly  given,  the 
asses  to  the  buyer  even  with- 
Kent,  Com.  [12  Ed.]  492; 
.;  Carpenter  v.  Hale,  8  Gray 
ing.  Law  Rep.  7  Q.   B.  436, 

lO. 

that  where  there  is  no  mani- 
arises  from  the  terms  of  sale, 
1  be  sold  is  specified  and  it  is 
the  contract  is  an  actual  sale, 
:  subject-matter  or  attendant 


HATCH    V.   OIL    COMPANY. 


■4-19 


circumstances  to  indicate  a  different  intention.  Well-founded 
doubt  upon  that  subject  can  not  be  entertained  if  the  terms  of 
bargain  and  sale,  including  the  price,  are  explicit ;  but  whi'ii 
the  thing  to  be  sold  is  not  specified,  or  if  when  specified  some- 
tiiing  remains  to  be  done  to  the  same  by  the  vendor,  either  to 
put  it  into  a  deliverable  state  or  to  ascertain  the  price,  llie  con- 
tract is  only  executory.  In  the  former  case  there  is  no  reason 
for  imputing  to  the  parties  any  intention  to  suspend  the  trans- 
fer, inasmuch  as  the  thing  to  be  sold  and  the  price  have  been 
specified  and  agreed  by  mutual  consent,  and  nothing  remains 
to  be  done.  Quite  uniiUe  that,  something  material  remains  to 
be  done  by  the  seller  in  the  latter  case  before  delivery,  from 
which  it  may  be  presumed  that  the  parties  intended  to  make 
the  transfer  dependent  upon  the  performance  of  the  things  yet 
to  be  done. 

Suppose  that  is  so,  still  every  presumption  of  the  kind  nnist 
yield  to  proof  of  a  contrary  intent,  and  it  may  safely  be  affirmed 
that  the  parties  may  effectually  agree  that  the  property  in  the 
specific  thing  sold,  if  ready  for  delivery,  shall  pass  to  the  buyer 
before  such  requiiements  are  fulfilled,  even  though  the  thing 
remains  in  the  possession  of  the  seller. 

Where  a  bargain  is  made  for  the  purchase  of  goods,  and 
nothing  is  said  about  payment  or  delivery,  Hailey,  J.,  said  the 
property  passes  immediately,  so  as  to  cast  upon  the  purchaser 
all  future  risk,  if  nothing  remains  to  be  done  to  the  goods, 
although  he  can  not  take  them  away  without  paying  the  price. 
vSimmons  v.  Swift,  5  B.  &  C.  S57,  11  Eng.  Com.  Law. 

Sales  of  goods  not  specified  stand  upon  a  different  footing, 
the  general  rule  being  that  no  property  in  such  goods  passes 
until  delivery,  because  until  then  the  very  goods  sold  are  not 
ascertained.  But  where  by  the  contract  itself  the  vendor 
appropriates  to  the  vendee  a  specific  chattel,  and  the  latter 
thereby  agrees  to  take  the' same  and  to  pay  the  stipulated  price, 
the  parties,  says  Parke,  J.,  are  thus  in  the  same  situation  as 
they  would  be  after  a  delivery  of  goods  under  a  general  con- 
tract, for  the  reason  that  the  very  appropriation  of  the  chattel  is 
equivalent  to  delivery  by  the  vendor,  and  the  assent  of  the  ven- 
dee to  take  the  specific  chattel  and  to  pay  the  price  is  equiva- 
lent to  accepting  possession.  Dixon  v.  Yates,  5  Barn.  &  Adol. 
313,  340;  27  Eng.  Com.  Law;  Shep.  Touch.  224. 
29 


45" 


MODES  OK  OBTAINING  TITLE  TO  PEHSONAL  PROPKIITY. 


When  the  aKVcement  for  sale  is  of   a   thinpf  not  specilied 

for  an   article  not  manufactured,   or  of   a  certain  quantit 

goods    in    general   without    any   identificrtion    of  them   oi 

appropriation  of  the  same  to  the  contract,  or  when  sometl 

remains  to  be  done  to  put  the  goods  Into  a  deliverable  stat< 

to  ascertain  the  price  to  be  paid  by  the  buyer,  the  contra 

merely  an  executory  agreement,  unless  it  contains  words  ' 

ranting  a  different  construction,  or  there  be  something  n 

subject-matter    or    the    circumstances    to    indicate  a  diff( 

intention.    IJenjamin,  Sales   [2  Ed.],   257?   Blackburn,  S 

i^i  •  Young  V.  Matthews,  Law  Rep.   2  C.  P.  127-129;  L^ 

V.  I'cMesurier,  6  Moore  P.    C.  C.    116;   Ogg  v.  Shuter, 

Rep.  10  C.  P.  159-163;  Langton  v.  Higgins,  4  H.  &  N. 

Turlcy  v.  Bates,  3  II.  &  C.  200-20S. 

Exactly   the   same  views  are  expressed  by  the   sup 

court  of  the  state  as  those  maintained  in  the   preceding  c 

Speaking  to  the  same  point,  Cooley,  C.  J.,  says,  when,  i 

a  contract  for  the   purchase  of  personal  property,   somd 

remains  to  be  done  to  identify  the  property   or  to  put  i 

condition   for  delivery,  or  to   determine  the  sum  that  shi 

paid  for  it,  the  presumption  is  always  very  strong  that  b 

understanding  of  the   parties  the  title  is  not  to  pass  until 

act  has  been  fully  accomplished.     Such  a  presumption, 

ever,   is   by  no  means   conclusive;   for  if  one  bargains 

another  for  the  purchase  of  such   property,    and   the    p 

agree  that  what  they  do  in  respect  to  its  transfer  shall  ha' 

effect  to  vest  the  title  in  the  buyer,  he  will  become  the  o 

as  the  question  is  merely  one  of  mutual  assent,  the  rule  I 

that  if  the  minds  of  the  parties  have  met,  and  they  have  a 

that  the  title  shall  pass,  nothing  further,  as  between  thems 

is  required,  unless  the  case  is  one  within  the   statute  of  i 

Consequently,  it  was  held  by  the  same  court  that  if  on 

chases  gold  bullion  by  weight,  and  receives  delivery  be 

becomes  convenient  to  weigh  it,  and  on  the  understandin 

the   weighing  shall   be    done    afterward,    the   bullion 

become  the  property  of  the  buyer  and  be   at  his  risk, 

there  were  some  qualifying  circumstances  in  the  case.     V 

son  V.  Holiday,  33  Mich.  386-3SS ;  Lingham  v.  Egglest 

Id.  324,  328;   Ortman  v.   Green,    26  Id.  209,  212.     De 

of  other  states  are  to  the  same  effect,  of  which  the  fol 


^Mi 


O  PEUSONAL  PROPERTY 


of   a   thinpf  not  specilied.  or 

or  of  a  certain  quantity  of 
dentificrtion  of  them  or  an 
contract,  or  when  something: 
ds  jito  a  deliverable  state,  or 

by  the  buyer,  the  contract  is 
nilcss  it  contains  words  war- 
or  there  be  something  in  the 
inces  to  indicate  a  different 
(],],  257;  Blackburn,  Sales, 
ep.  2  C.  P.  137-129;  Logan 
Z.    116;   Ogg  V.  Shuter,  Law 

V.  Higgins,  4  H.  &  N.  400; 
joS. 

;  expressed  by  the  supreme 
lined  in  the  preceding  cases, 
ley,  C.  J.,  says,  when,  under 
personal  property,  something 
the  property  or  to  put  it  in  a 
;termine  the  sum  that  shall  be 
Iways  very  strong  that  by  the 

title  is  not  to  pass  until  such 
,  Such  a  presumption,  how- 
^'e;  for  if  one  bargains  with 
;h  property,  and  the  parties 
ct  to  its  transfer  shall  have  the 
;r,  he  will  become  the  owner, 

mutual  assent,  the  rule  being, 
ave  met,  and  they  have  agreed 
further,  as  between  themselves, 
e  within  the  statute  of  frauds, 
the  same  court  that  if  one  pur- 

and  receives  delivery  before  it 

and  on  the  understanding  that 
afterward,  the  bullion  would 
yer  and  be  at  his  risk,  unless 
nnstances  in  the  case.  Wilkin- 
SS;  Lingham  v.  Eggleston,  27 
1,   26  Id.  209,  212.     Decisions 

effect,  of  which  the  following 


HATLII    V.  on.    COMPANY. 


451 


arc  examples:  Pacific  Iron  Works  v.  Long  Island  Railroad 
Co.,  62  N.  Y.  272,  274;  Groff  v.  Ik-lche,  62  Mo.  .}oo-(02; 
Morse  v.  Sherman,  106  Mass.  430,  433;  Riddle  v.  Varnum, 
20  Pick.  (Mass.)  3S0,  2S3 ;  Chapman  v.  Slicphard,  39  Conn. 
,H3_.^i9;  Fuller  v.  IJean,  34  N.  II.  290-300. 

Modern  decisions  of  the  most  recent  date  support  the  propo- 
sition that  a  contract  for  the  sale  of  specific  ascertained  goods 
vests  the  property  immediately  in  the  buyer,  and  that  it  gives 
to  the  seller  a  right  to  the  price,  unless  it  is  shown  that  sucii 
was  not  the  intention  of  the  parties.  Gilmore  v.  Supple,  11 
Moore  P.  C.  C.  551;  Benjamin,  Sales  [2  Ed.],  280;  Dunlap 
v.  Lambert,  6  CI.  &  Fin.  600;  Calcutta  Co.  v.  DeMattos,  33 
Law  J.  Rep.  X.  s.  Q.  B.  322-33S.  "There  is  no  rule  of  law," 
says  Blackburn,  J.,  in  the  case  last  cited,  "to  prevent  the  par- 
tics  in  such  cases  from  making  whatever  bargain  they  please. 
If  they  use  words  in  the  contract  showing  that  they  intend  that 
the  goods  shall  be  shipped  by  the  person  who  is  to  supply  the 
same,  on  the  terms  that  when  shipped  they  shall  be  the  con- 
signee's property  and  at  his  risk,  so  that  the  vendor  shall  be 
paid  for  them  whether  delivered  at  the  port  of  destination  or 
not,  this  intention  is  effectual."  s.  c,  33  Id.  214;  11  W.  R. 
1024,  1037. 

Support  in  some  of  the  cases  cited  is  found  to  the  theory  that 
the  terms  of  the  bargain  and  sale  in  this  case,  inasmuch  as 
they  indicate  that  the  intention  of  the  sellers  was  to  appro- 
priate the  staves  when  manufactured  to  the  contract,  are  suth- 
cicnt  to  vest  the  property  in  the  buyer  when  the  agreed  sum  to 
be  advanced  was  paid  even  without  any  delivery;  but  it  is 
quite  unnecessary  to  decide  that  question  in  view  of  the  evi- 
dence and  what  follows  in  the  second  contract  between  the  par- 
ties. 

Provision  was  made  that  a  convenient  place  should  be 
designated  by  the  parties  where  the  staves  should  be  piled  as 
fast  as  they  could  be  sawed.  Such  a  place  was  provided  to  the 
acceptance  of  both  parties,  and  the  plaintiffs  furnished  a  man 
as  agreed  to  count  the  same  from  week  to  week  as  the  staves 
were  piled.  Enough  appears  to  show  that  all  the  staves, 
except  as  aforesaid,  were  piled  and  delivered  at  that  agreed 
place. 

In  a  contract  of  sale,  if  no  place  of  delivery  is  specified  in 
the  contract,  the  articles  sold  must,  in  general,  be  delivered  at 


453     MonKS  OK  onTA,N.NO  Trn.K  to  rr.usos.s,.  .uovkutv 

the  nl.ce  where  they  arc  at  the  time  of  the  sale,  unless 
the  place  vvnc  .  nature  of    the  article  ( 

rissrortr:;::;!^;-:;:^  course  of  ch 

!::.:r  the  parties,    or  is    to    be    hi^rrea  f^^^^^^ 
si.nces  of  the  case.     Decided    cases    to    that  effect  are 
'T;  but  the    rule  is  universal,    that    i^  ^M^l-  o    cle 
prescribed    as    a    part    of    the    contract,    the  vendee 
bound  to  accept  a    tender    of    the    ,oods  made  .n  any 
'r:!  lor  is  the  vendor  obliged  to  make  a  tender  else, 

delivered    at    a    particular  place,    the    seller,    before    1 
e  o^r    his    pay-     is   bound    to    prove    the    de  .very 
,.Hce     Savage  Mfg.  Co.  v.  Armstrong,  19  Me.     47-     ^' 
h  Tnten ton'ot  th'e  parties  as  to  the  place  of  dehvery 
CO  le"^ed  from  the  contract,  and  the  circumstances  pu 
e,  ^ion  to  it,  the  delivery  should  be  ma  e  at  such  pa 
though  some   alterations  have  been  made   m  the  plac. 
nated.     Howard  v.  Miner,  20  Id.  325-33°- 
"  Much  discussion  is  certainly  unnecessary  to  show   ha, 
the  terms  of  bargahi  and  sale  are  m  the  usual  foim,  an  , 
ei^ry  of  the  Article  sold  vests  the  title    n  the  purcl 
th    apriorities  upon   the   subject  to  that  effect   are  n 
iLous,  and  decisive,    "y^^^  ^^^f  ^P'  ^  Keye    ( 
.07.,  Macomber  v.  Parker,  13  P'ck.  (Mass.)  .75,  >83. 
^1n  an  action  for  goods  sold   and   delivered     .     the 
pro  es  delivery  at  the  place   agreed   and   that  there 
Tothing  further  for  him  to  do,  he  need  not  sho^v  an  a. 
Tthe  defendant.     Nichols  v.  Morse,   xoo   Mass.   5- 
vvLn  a  place  of  delivery  is  specified,  itdoesno  neces 
ow  that'the  title  does  not  pass  before  they  reach   he  c 
oHce    as  that  may  depend  upon  the   nitent.on   of  the 
td  whether  they'did  or  did  not  intend  that  the  title  si 
before  that  is  a  question  for  the  jury,  to  be     etermine 
words,  acts,  and  conduct  of  the  parties  and  all  the  c, 
ces      Dyer  V.  Libbey,  61  Me.  45-     Where  ,t  appears 
hasbeen  a  complete  delivery  of  the  property  ,n  accorc 
th    telsof  as'ale,  the  title    passes,    although    then 
omething  to  be  done  in  order  to  ascertain  the  to^  v 
goods  at  the  rates  specified  in  the  contract.     Buuows 


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23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


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HATCH    V.  Oil,    COMPANY. 


453 


kl 


i 


akcr,  71  N.  Y.  291-396;  Graft  v.  Fitch,  5S  111.  373;  PussoU 
V.  Canington,  43  X.  Y.  iiS,  125;  Terry  v.  Wheeler,  2^,  Id. 
520,  e,2S. 

Beyond  controversy,  such  must  be  the  rule  in  this  case, 
because  the  contract  provides  that  upon  the  pilin<i:  and  counting 
the  staves  as  required  by  the  instrument  the  delivery  of  the 
same  shall  be  deemed  complete,  and  that  the  staves  shall  then 
become  and  henceforth  be  the  property  of  the  plaintiffs  abso- 
lutely and  unconditionally. 

Except  the  fifty  tiiousand  before  named,  all  the  staves  were 
so  piled  and  counted  ;  and  the  case  showc  that  the  person  desig- 
nated to  count  the  same  ajiproved  fourteen  certificates  specifv- 
ing  the  respective  amounts  of  the  sevetal  parcels  delivered,  and 
that  the  plaintiffs  paid  on  each  the  $17  per  thousand  advance 
as  agreed,  amounting  in  all  to  $15,148. 

Personal  property  may  be  purchased  in  an  unfinished  condi- 
tion, and  the  buyer  may  acquire  the  title  to  the  same  though 
the  possession  be  retained  by  the  vendor  in  order  that  he  may 
fit  it  for  delivery,  if  the  intention  of  the  parties  to  that  effect  is 
fully  proved.      Elgee  Cotton  Cases,  22  Wall.  iSo. 

After  an  executory  contract  has  been  made,  it  may  be  con- 
verted into  a  complete  bargain  and  sale  by  specifying  the  goods 
to  which  the  contract  is  to  attach,  or,  in  legal  phrase,  by  the 
appropriation  of  specific  goods  to  the  contract,  as  the  sole  ele- 
ment deficient  in  a  perfect  sale  is  thus  supplied.  Benjamin, 
Sales  [2  Ed.],  263;  Rohde  v.  Thwaites,  6  B.  &  C.  3SS ;  13 
Eng.  Com.  Law. 

Examples  of  the  kind  are  numerous  in  cases  where  the  goods 
are  not  specified,  and  the  decided  cases  show  that  if  the  seller 
subsequently  selects  the  goods  and  the  buyer  adopts  his  acts, 
the  contract  which  before  was  a  mere  agreement  is  converted 
into  an  actual  sale  and  the  property  passes  to  the  buyer.  One 
hundred  quarters  of  barley  out  of  a  bulk  in  a  granary  were 
agreed  to  be  purchased  by  the  plaintiff,  he  having  agreed  to 
send  his  own  sacks,  in  which  the  same  might  be  conveyed  to 
an  agreed  place.  He  sent  sacks  enough  to  contain  a  certain 
part  of  the  barley,  which  the  seller  filled,  but,  being  on  the 
eve  of  bankruptcy,  he  refused  to  deliver  any  part  of  the  quan- 
tity sold,  and  emptied  the  barley  in  the  sacks  back  into  the 
bulk  in  the  granary.     Held,  in  an  action  brought  to  recover  the 


454       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

^vhole  amount,  that  the  quantity  placed  in  the  sacks  passed  to 
the  purchaser,  as  that  part  ^vas  appropriated  by  the  bankrupt  to 
the  plaintiff.  Aldrich  v.  Johnson,  7  E.  &  B.  SS5 ;  90  ^ng. 
Com.  Law;  Brown  v.  Hare,  3  H.  &  N.  4«4 ;  s.  c,  4  I^l-  S^i  ; 
Tregeles  v.  Sewell,  7  Id.  573.  ,     ,  .      .        », 

Stipulations  in  respect  to   the  forwarding   and   sh.ppmg  the 
staves  are  also  contained  in  the  second  agreement ;  but  it  is  not 
necessary  to  enter  into  any  discussion  of  that  topic,  as  it  appears 
that  the    manufacturers,   if  they  did    anything  in   that  regard, 
were  to  act  as  the  agents  of  the  plaintiffs,  and  if  they  faded   to 
transport  the  same    to  the  place  of   shipment   seasonably,    the 
plaintiffs  were  authorized  to  do  it  at  their  expense.     Nor   is  it 
necessary  to  discuss   the    stipulations  as  to  insurance,  as  it  is 
clear  that  they  contain  nothing  inconsistent  with  the  theory  that 
the  property  vested  in  the  plaintiffs  as  soon  as  the  staves  were 
piled  and  delivered  at  the  agreed  place  of  delivery. 

Proof  of  a  satisfactory  character  was  exhibited  that  much  the 
ereater  portion  of  the  staves  were  piled  upon  the  leased   site, 
and  that  the  residue  were  piled  on  land  adjoining  and  within  a 
hundred  or  a  hundred  and  fifty  feet  from  the  larger  pile.     Wit- 
nesses  examined  the  staves  piled  there  several   times,    and  one 
of  them  testified  that  he  was  there  July  10,    1875,   with   one  of 
the  sellers,  and  made  a  thorough  count  of  the  staves,  the  num- 
ber  counted  being  780,000,  and  he   states  that  he  counted  the 
staves  in  both  piles,  and  that  there   were  no   other  white-oak 
staves  on  the  premises.  _ 

Taken  as  a  whole,  the  evidence  shows  that  the  parties  treated 
both  piles  of  the  staves  as  delivered  under  the  contract,  the  one 
as  much  as  the  other,  and   that  they  regard  both    as   properly 
included  in  the  adjustment   of  the    amounts  to  be  advanced 
When  the  agent  of  the  plaintiffs  went  there,  as  before  explained, 
with  one  of  the  sellers,  it  is  certain  that  they  counted  both  piles, 
and  it  is  clear  that  in  view  of    the   evidence    and   the    c.rcum- 
stances  the  jury  were  warranted  in  finding  that  the  property  in 
all  the  white-oak  staves  piled  there  passed  to  the  plaintiffs  when 
thev  were  piled  and  delivered  at  that  place,  neither  party  hav- 
ing objected  to  the  place  where  the  smaller  parcel  was  piled. 

Actual  delivery  of  the  staves  having  been  proved,  it  is  not 
necessary  to  make  any  reply  to  the  defense  set  up  under  the 
state  statute  in  respect  to  the  sale  of  goods  unaccompanied  by 


^ 


PROPERTY. 

lacks  passed   to 

the  bankrupt  to 

SS5;  c)'.   Eng. 

c,  4  Id.  82 1  ; 

id  shipping  the 
!nt ;  but  it  is  not 
pic,  as  it  appears 

in   that  regard, 
i  they  failed   to 

seasonably,  the 
ense.  Nor  is  it 
surance,  as  it  is 
h  the  theory  that 

the  staves  were 
ivery. 

;ed  that  much  the 
,  the  leased  site, 
ning  and  within  a 
arger  pile.  Wit- 
l  times,  and  one 
375,    with   one  of 

staves,  the  num- 
it  he  counted  the 
I   other  white- oak 

the  parties  treated 
e  contract,  the  one 
both  as  properly 
I  to  be  advanced. 
s  before  explained, 
:ounted  both  piles, 

and  the  circum- 
lat  the  property  in 
the  plaintiffs  when 
neither  party  hav- 
parcel  was  piled. 
n  proved,   it  is  not 

set  up   under  the 
unaccompanied  by 


CHAPMAN   V.  SHEPARD. 


455 


a  change  of  possession.  Objection  is  also  made  that  the  lease 
of  the  premises  designated  as  the  place  of  delivery  was  not  re- 
corded, which  is  so  obviously  without  merit  that  it  requires  no 
consideration. 

Viewed  in  the  light  of  these  suggestions,  it  is  obvious  that 
the  first  five  assignments  of  error  must  be  overruled. 

Exception  was  also  taken  to  the  ruling  of  the  court  below  in 
excluding  certain  testimony  offered  by  the  defendant  to  show 
that  the  staves  were  not  cut  and  made  at  the  time  some  of  the 
certificates  were  given  to  secure  the  advance,  and  to  show  that 
the  staves  included  in  the  small  pile  were  never  in  fact  counted, 
and  that  no  certificate  specially  applicable  to  them  was  ever 
given.  Responsive  to  the  objection  of  the  defendant,  the  court 
below  remarked  that,  if  the  staves  were  subsequently  piled 
there  to  the  satisfaction  of  the  plaintiffs,  the  title  passed,  it 
appearing  that  the  certificates  were  given  and  the  advance  paid, 
which  is  all  that  need  be  said  upon  the  subject,  as  it  is  plain  that 
the  ruling  is  without  just  exception.  •      Judgment  affirmed. 

CoNSLLT — Riddle  v.  Varnum,  20  Pick.  280;  Terry  v.  Whieeler,  25  N. 
Y.  520;  Foster  v.  M.igill,  119  111.  75;  Kost  v.  Reilly,  62  Conn.  57; 
Winslow  V.  Leonard,  24  Pa.  St.  14,  62  Am.  Dec.  354;  Lingham  v.  Eggle- 
ston,  27  Mich.  324;  Cornell  v.  Clark,  104  N.   Y.  451. 


§  83.  Sale  of  chattels  not  specified— Necessity  of  separa- 
tion from  mass. 

CHAPMAN  V.  SHEPARD. 

[39  Conn.  413.] 
Supreme  Court  of  Errors  of  Connecticut,  i8y2. 

Seymour,  J. — The  plaintiff  brought  his  action  of  trover  in 
three  co-mts: 

Pirst.  For  the  alleged  conversion  of  three  hundred  and 
eighty  bags  of  meal  belonging  to  the  plaintiff. 

Second.  For  the  conversion  of  seven  hundred  and  fifty  bags 
of  meal  belonging  to  the  plaintiff  and  defendant  as  tenants  in 
common. 

Third.  Alleging  the  meal  to  belong  to  the  plaintiff  and 
defendant  and  one  John  T.  Gill  as  tenants  in  common. 


45<J       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPEHTV. 


It  appears  from  the  finding'  of  facts  by  the  judge  who  tried  the 
case  in  tiie  superior  court,  thit  the  defendant,  being  the  owner 
of  a  lot  of  bags  of  meal  consisting  of  between  five  and  six  hun- 
dred, on  the  tenth   of  January,    1867,    sold   the  lot  to  Joh:i  T. 
Gill  at  the  price  of  two  dollars  and  forty  cents  per  bag.     The 
property  was  then  in  a  schooner  lying  at  Long  Wharf,  in  New 
Haven.      Afterward,  on  the  twenty-fifth  of  January,  Gill  sold 
to  the  plaintiff  live  hundred  of  these  bags  still  remaining  in  the 
schooner.     Of  this  sale  the  plaintiff  notified  the  defendant,  and 
the  defendant  gave  the  plaintiff  authority  immediately  to  remove 
the  bags  he  had  purchased.      The  plaintiff,    however,   told  the 
defendant  that  he  was  busy  that  day,  but  in  a  few  days  would 
send  for  them.     The  plaintiff  a  few  days  after  tnis  conversation, 
to  wit,  on  the  fourth   of   February,    gave  Gill   his  note,   which 
was  paid  at  maturity,  for  the  price  of  the  meal.     On  the  fifth 
of  February  the  plaintiff  received  one  hundred  and  forty  of  the 
bags,  and  then  took  no  more,  because  the  defendant  said  the 
rest  could  not  be  removed  until  some  corn,  for  wh'ch  the  bags 
were  used  as  a  bulk-head,  had  first  been  taken  out.      Jill  became 
notoriously  insolvent  on  the  seventh  of  February.     The  defend- 
ant, upon  due  demand  made  by  the  plaintiff,  refused  to  deliver 
the  remaining  three  hundred  and  sixty  bags  of  meal,   and  for 
such  refusal  this  action  was  brought.      The  sale  to  Gill  was  for 
cash,  and  the  defendant  had  not  been  paid  for  the  meal  by  him 

so  sold. 

The  judgment  in  the  superior  court  was  for  the  plaintiff,  and 
the  defendant  seeks  for  a  new  trial. 

The  defendant's  counsel  claim  that  the  title  did  not  pass  to 
Gill,  for  that  the  counting  oE  the  bags  was  an  act  remaining  to 
be  done  as  between  the  defendant  and  Gill;  and  they  also 
claim  a  right  to  retain  for  the  unpaid  price.  As  between  the 
defendant  and  Gill,  these  claims  would  perhaps  be  well  founded  ; 
but  we  think  they  can  not  prevail  against  the  plaintiff  upon  the 
circumstances  disclosed  in  the  finding.  The  defendant  gave 
the  plaintiff  authority  to  make  immediate  removal  of  the  five 
hundred  bags  without  intimating  that  Gill's  title  was  not  per- 
fect, and  thus  left  the  plaintiff  to  pay  the  price  to  Gill.  The 
defendant  also  treated  the  meal  as  belonging  to  the  plaintiff  by 
delivering  one  hundred  and  forty  bags,  and  inducing  him  to 
allow  the  residue  to  remain  without  removal,  to  accommodate 


■,; 


i 


[OPERTY. 

ivho  tried  the 
ig  the  owner 
and  six  hun- 
it  to  John  T. 
r  bag.     Tlie 
harf,  in  New 
[iry,  Gill  sold 
laining  in  the 
;fendant,  and 
ely  to  remove 
ver,   told  the 
,v  days  would 
conversation, 
note,   which 
On  the  fifth 
d  forty  of  the 
dant  said  the 
h"ch  the  bags 
Jill  became 
The  dcfenu- 
scd  to  deliver 
Ileal,  and  for 
)  Gill  was  for 
;  meal  by  him 

plaintiff,  and 

d  not  pass  to 
t  remaining  to 
and  they  also 
s  between  the 
well  founded  ; 
intiff  upon  the 
efendant  gave 
al   of  the  five 

was  not  per- 
to  Gill.  The 
he  plaintiff  by 
iducing  him  to 

accommodate 


CHAPMAN    V.    SHEPARD. 


457 


the  defendant  as  a  bulkhead  for   his  corn,    intimating  still  no 
infirmity  in  the  title  of  Gill. 

We  think  it  is  too  late  for  the  defendant  to  call  Gill's  title  in 
q\iestion  after  having  thus  treated  it  a::  perfect  and  complete. 
The  superior  court  very  properly  regarded  the  defendant  as 
estopped  from  setting  up  the  claims  now  made.  If  authority 
is  needed  for  a  point  so  plain,  it  may  be  found  in  Stoveld  v. 
Hughes,  14  East,  30S. 

But  the  point  most  strenuously  pressed  by  the  defendant's 
counsel  is  this,  that  admitting  Gill's  title  to  have  been  such 
that  the  defendant  can  not  be  permitted  to  deny  it,  still,  the 
plaintiff's  title  is  defective.  He  bought  of  Gill  five  hundred 
out  of  a  hirge  number  of  bags,  and,  with  the  exception  of  the 
hundred  and  orty  delivered,  the  remaining  three  hundred  and 
sixty  were  not  separated  from  the  mass,  and  they  insist  that 
until  such  severance  the  title  did  not  pass;  that  until  separation 
the  contract  was  merely  executory,  and  that  the  title  remained 
in  Gill,  and  therefore  remained  subject  to  the  plaintiff's  lien. 

This  claim  comes  with  somewhat  an  ill  grace  from  the 
defendant,  inasmuch  as  it  aptjears  that  the  separation  would 
have  been  made  on  the  fifth  of  February  had  it  not  been  on  his 
request  and  for  his  convenience  postponed  until  the  bags  should 
be  no  longer  needed  as  a  bulkhead  for  1  is  corn.  But  the  same 
considerations  of  estoppel  which  apply  to  the  other  branch  of 
the  case  do  not  apply  here,  and  we  m^st,  therefore,  proceed  to 
examine  with  some  care  the  proposition  of  law  on  which  the 
claim  of  the  defendant  now  under  consideration  is  founded. 

The  superior  court  having  found  the  issue  for  the  plaintiff, 
we  can  not  grant  a  new  trial  unless  some  point  of  law  was 
wrongly  decided.  Upon  the  facts  found  we  must  regard  the 
title  as  having  passed  from  Gill  to  the  plaintiff,  imless  the  law 
is  so  that  until  and  without  the  severance  of  the  five  hundred 
bags  from  the  bulk  of  five  or  six  bundled  the  title  could  not 
pass.  The  evidence  detailed  would  warrant  the  superior  court 
in  finding  that  the  parties  intended  an  executed  sale.  The 
price  was  paid,  and  nothing  remained  to  be  done,  as  between 
buyer  and  seller,  to  complete  the  sale.  The  plaintiff  was  to 
take  his  meal  when  he  wanted  it,  and  as  he  should  want  it. 
Notice  of  the  sale  was  given  to  the  defendant,  in  whose  custody 
the  property  was,  who  attorned  to  the  plaintiff. 


■■ 


45S       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  rUOPEIlTY. 


The  case,  tlicrcfore,  depends  upon  the  inquiry  whether  it  h»;, 
as  the  defendant's  counsel  contend,  an  nbsohite  rule  of  law 
that,  upon  the  sale  of  a  portion  of  a  larger  bulk,  the  contract 
remains  in  judgment  of  law  executory  until  the  portion  soil  is 
severed  and  separated  for  the  purchaser  from  the  mass.  It 
must  be  conceded  that  this  question  is  not  free  from  difficulty, 
and  that  in  regard  to  it  respectable  authorities  differ. 

In  regard  to  a  large  class  of  cases  the  law  is  indisputably  as 
the  defendant  claims.  If  I  sell  ten  out  of  a  drove  of  one  hun- 
dred horses,  to  be  selected,  whether  by  myself  or  by  the  vendee, 
no  title  can  pass  until  the  selection  is  made.  This  rule  pre- 
vails wherever  the  nature  of  the  article  sold  is  such  that  a 
selection  is  required,  whether  expressly  provided  for  or  not  by 
the  terms  of  the  contract.  If  the  articles  differ  from  each  other 
in  quantity  or  quality  or  value,  the  necessity  of  a  selection  is 
clearly  implied.  In  all  such  cases  the  subject-matter  of  the 
contract  can  not  be  identified  until  severance,  and  the  sever- 
ance is  necessary  in  order  that  the  subject-matter  of  the  contract 
may  be  made  certain  and  definite. 

But  where  the  subject-matter  of  the  sale  is  part  of  an  ascer- 
tained mass  of  uniform  quality  and  value,  no  selection  is 
required,  and  in  this  class  of  cases  it  is  aftirmed  by  authorities 
of  the  highest  character  that  severance  is  not,  as  matter  of  law, 
necessary  in  order  to  vest  the  legal  title  in  the  vendee  to  the 
part  sold.  The  title  may  and  will  pass,  if  such  is  the  clear 
intention  of  the  contracting  parties,  and  if  there  is  no  other 
reason  than  want  of  separation  to  prevent  the  transfer  of  the 
title. 

The  leading  case  on  this  subject  in  England  is  that  of 
Whitehouse  v.  Frost,  13  East,  614.  That  case  has  been  the 
subject  of  some  adverse  criticism,  but  in  respect  to  the  point 
under  consideration  it  seems  to  us  to  have  been  properly 
decided.  The  sale  of  the  bankrupt  was  of  ten  tons  of  oil,  in  a 
cistern  contaming  forty  tons.  There  was  no  severance  of  the 
ten  tons  from  the  remaining  thirty,  and  the  court  held  that  the 
title  vested  in  the  bankrupt,  so  that  his  assignee  could  maintain 
an  action  of  trover.  The  case  was  elaborately  discussed  at  the 
bar  and  by  the  bench,  and  Blanc,  J.,  says:  "Something,  it  is 
said,  still  remained  to  be  done,  namely,  the  measuring  off 
the  ten  tons   from  the  rest   of   the    oil.      Nothing,  however, 


)1'ERTY. 

Iiethcr  it  V>»;, 
rule  of  law 
the  contract 
tion  sol.l  is 
e  mass.  It 
m  difficulty, 
r. 

isputably  as 
of  one  hun- 
the  vendee, 
his  rule  pre- 
such  that  a 
or  or  not  by 
n  each  other 
I  selection  is 
atter  of  the 
id  the  sever- 
the  contract 

of  an  ascer- 
selection  is 
y  authorities 
atter  of  law, 
cndce  to  the 
is  the  clear 
e  is  no  other 
nsfer  of  the 

d  is  that  of 
as  been  the 
t  to  the  point 
.-en  properly 
IS  of  oil,  in  a 
erance  of  the 
held  that  the 
uld  maintain 
cussed  at  the 
mething,  it  is 
neasuring  off 
ig,  however. 


CHAPMAN    V.   SIIEPARD. 


459 


remained  to  be  done  to  complete  the  sale.  The  objection  only 
applies  where  something  remains  to  be  done  as  between  buyer 
and  seller  for  the  purpose  of  ascertaining  either  the  quantity  or 
the  price,  neither  of  which  remained  in  this  case." 

Nothing  was  said  by  the  counsel  or  the  court  in  the  case  of 
VVhitehousc  v.  Frost  about  a  tenancy  in  common  being  created 
by  the  contract.  In  a  subsequent  case,  Busk  v.  Davis,  3  M.  «S: 
S.  397,  the  suggestion  is  made  that  the  sale  was  of  an 
undivided  (luanfity  of  the  oil,  as  it  undoubtedly  was;  but 
thi>ugh  the  property  was  intermixed  with  other  property  of  the 
same  kind,  the  title  was  held  to  be  in  severalty  for  the  practical 
purpose  of  being  protected  by  an  action  of  trover,  and  it  is 
such  a  property  as  includes  the  ordinary  risk  of  ownership, 
which  indeed  would  be  true  whether  the  title  were  in  common 
or  in  severalty. 

In  the  case  of  the  oil  it  was  the  intention  of  the  vendors  to 
confer  on  the  vendee  a  perfect  right  at  any  time  to  take  his  ten 
tons.  The  vendee  was  to  have  the  same  right  to  the  ten  tons 
that  the  vendors  retained  in  the  remaining  thirty  tons;  and 
conceding  such  to  have  been  the  contract,  why  should  the  law 
disappoint  that  intention  by  an  arbitrary  rule  of  law  against  it.'' 

Among  the  earliest  cases  which  we  find  on  this  subject  in 
this  country  is  that  of  Pleasants  v.  Pendleton,  reported  in  6 
Randolph's  Va.  473.  The  sale  was  of  a  certain  number  of 
barrels  of  flour,  part  of  a  larger  parcel  of  such  barrels,  of  the 
same  brand  and  of  equal  value.  The  contract  was  complete  in 
every  respect  except  the  separation  of  the  barrels  sold.  The 
court  held  that  the  title  passed,  one  of  the  judges  saying: 
"These  are  not  portions  of  a  larger  mass  to  be  separated  by 
weighing  and  measuring,  but  consist  of  divers  separate  and 
individual  things,  a'.\  precisely  of  the  same  kind  and  value, 
mixed  with  other  separate  and  individual  things  of  the  sam« 
kind  and  between  which  there  is  no  difference." 

The  leading  case  on  this  subject  in  the  state  of  New  York  is 
that  of  Kimberly  v.  Patchin.  The  matter  is  elaborately  dis- 
cussed and  the  conclusion  is  well  expressed  in  the  reporter's 
syllabus:  "Upon  a  sale  of  a  specified  quantity  of  grain,  its  sep- 
aration from  a  mass  indistinguishable  in  quality  or  value  with 
which  it  is  included  is  not  necessary  to  pass  the  title  when  the 
intention  to  do  so  is  otherwise  clearly  manifested."      i6  N.  Y. 


460       MOPES  OF  OltTAIMNG  TITLE  TO  PERSONAL  PROl'ERTV, 

330.  Jiulgc  Comstock,  in  S'^'""  t'^c  opinion  of  the  court, 
rcinaiks:  "It  is  not  necessary  to  (iecide  whether  the  parties  to 
the  sale  became  tenants  in  common.  If  a  tenancy  in  common 
arises  in  such  casus,  it  must  be  with  some  peculiar  incitlcn^  not 
usually  bclon^infif  to  that  species  of  ownership." 

In  Waldron  v.  Chase,  37  Me.  414,  it  was  decided  that  where 
the  owner  of  a   larfjc   quantity   of  corn    in   bulk  sells  a  certain 
number  of  bushels  therefrom  and  receives  his  pay,  and  the  ven- 
dee takes  away  a  part,  the  property  in  the  part  sold  vests  in  the 
vendee,  although  it  is  not  measured  or  separated  from  the  heap. 
In  Pennsylvania  (7  Pa.   S.   T.   140,  Hutchinson  v.  Hunter) 
and  in  Ohio  (Woods  v,  McGee,  7  Ohio,  467),  the  courts  seem 
to  hold  that  severance  from  the  mass  is  absolutely  essential  to 
the  vestinj^  of  title   in   the   vendee.     The   opinion   expressed  in 
those  cases  is  strongly  in  that  direction,  and  yet  the  cases  them- 
selves would  be  decided  by  us  precisely  as  they  are  decided  l)y 
those  courts,  for  in   the  Pennsylvania   case  it   appears  that  the 
subject  of  sale  was  part  of  a   bulk  of  unequal  quantities  and 
values,  and  in  the  Ohio  case  the  barrels  of  flour  composing  the 
bulk  varied  in  value  from  twenty-five  to  fifty  cents  per  barrel. 
If   in  the  case  we  have  under  our  consideration  any  such  fact 
appeared,  we  should  decide  in  favor  of  the  defendant,  for  our 
decision  is  based   upon  the   fact  that  the  bags  of  meal  do  not 
appear  to  have  been  in  any  respect  different  one  from  another. 
The  subject  we  are  discussing  seems  to  have  perplexed  the 
courts  of  Massachusetts.     In  the  case  of  Scudder  v.  Worster, 
II  Cush.  573,    severance  seems  to  be  regarded  by  the  court  as 
essential  in  cases  of  this   kind  to  the   transfer  of  the  title,  and 
yet  in  a  sonievvhat  more  recent  case  of  Weld  v.  Cutler,  3  Gray, 
195,  it  was  held  that  upon  a  mortgage  of  a  portion  of  a  larger 
mass  of  coal,  the  title  passed   to   the  mortgagee   as  against  an 
assignee  in  bankruptcy  of   the    mortgagor   without  and  before 
separation,  where  the  whole  mass  was  put  into  the  possession 
of  the  mortgagee  to  enable   him  to  separate  his  part  from  the 
bulk.     Such  a  delivery  is   so   decided   evidence  of  an  executed 
mortgage  as  to  leave  no  doubt  of  the   intention   of  the  parties, 
and  yet  until  the  separation  is  made  that  act  remains  to  be  done, 
and  the  decision  recognizes  the  title  of  the  mortgagee  as  valid 
and  executed  in  him  prior  to  the  severance  and  while  the  prop- 
erty is  intermixed  and  in  common,   and  thus  seems  to  recog- 


Ol'ERTV. 

f  the   court, 

he  jjarties  to 

,  ill  common 

iiicitlcii^  not 

d  that  where 
ells  a  certain 
and  the  ven- 
1  vests  in  the 
jm  the  heap. 
1  V.  Hunter) 

courts  seem 
y  essential  to 

expressed  in 
!  cases  them- 
e  decided  1)V 
)ears  that  the 
uantities  and 
)mposing  the 
ts  per  barrel, 
any  such  fact 
dant,  for  our 
:  meal  do  not 
rom  another, 
perplexed  the 
•  V.  VVorster, 
y  the  court  as 
the  title,  and 
itler,  3  Gray, 
3n  of  a  larger 
as  against  an 
it  and  before 
he  possession 
part  from  the 
f  an  executed 
)f  the  parties, 
IS  to  be  done, 
jagee  as  valid 
hile  the  prop- 
ems  to  recog- 


CHAPMAN    V.   SIIKPAllD. 


461 


nize  the  doctrine  established  in  Virginia,  New  York,  anc! 
Maine,  that  such  a  title  is  possible  in  law.  If  it  be  in  law  pos- 
sible, then  its  existence  in  a  particular  case  must  depend  upon 
the  clearly  expressed  wish  and  intention  of  the  parties. 

In  view  of  the  authorities  which  we  have  commented  upon 
and  of  the  reason  of  the  thing,  we  have  come  to  the  conclusion 
— -first,  that  there  is  no  legal  bar  which  prevents  the  transfer  of 
the  title  until  actual  separation  of  the  five  hundred  bags  from 
the  mass;  and  second,  that  the  facts  in  the  case  before  us  war- 
rant the  superior  court  in  finding  that  the  parties  intended  that 
the  title  should  pass.  The  fact  that  the  contract  was  executed 
on  the  plaintiff's  part  by  the  execution  and  delivery  of  his  note, 
since  paid,  for  the  price,  is  very  significant.  There  is  no  indi- 
cation in  any  part  of  the  case  of  anyting  executory  remaining 
to  be  done  by  Gill.  If  the  meal  had  been  destroyed  by  fire 
and  Gill  had  remained  solvent,  we  think  the  plaintiff  could  not 
have  successfully  sued  Gill  for  nondelivery  as  upon  an  execu- 
tory agreement  to  count  out,  separate,  and  deliver  the  five  hun- 
dred bags.  Gill's  answer  would  be  that  he  had  done  every- 
thing that  he  had  contracted  to  do — everything  which  it  was 
expected  he  should  do.  He  had  placed  the  property  within  the 
control  of  the  plaintiff,  who  had  assumed  the  control  by  taking 
away  a  part  and  allowing  the  residue  to  remain  in  the  schooner 
for  the  defendant's  convenience. 

The  title  then,  we  think,  passed,  whether  in  severalty  or  in 
common  it  is  unnecessary  to  decide,  for  there  are  counts  in  the 
plaintiff's  declaration  adapted  to  either  alternative.  If  there 
were  evidence  by  express  words  or  by  fair  inference  of  an 
intention  on  the  part  of  Gill  to  confer,  and  on  the  part  of  the 
plaintiff  to  take,  a  joint  title  in  the  mass  of  the  bags  in  the  pro- 
portion of  five  hundred  to  the  whole  number,  the  case  would 
be  entirely  free  from  the  embarrassments  which  have  been 
under  consideration.  It  is,  of  course,  competent  for  the  owner 
of  six  hundred  bags  of  meal  of  equal  quality  and  value  to  sell 
five  sixths  of  them,  and  to  transfer  the  title  of  the  five  sixths  with- 
out severance.  In  such  case  the  ultimate  severance,  if  it  ever 
takes  place,  is  not  as  between  the  parties  as  vendor  and  vendee, 
but  between  them  as  tenants  in  common  after  the  full  comple- 
tion of  the  sale.  In  such  case  after  the  sale  the  parties  are 
tenants  in  common,  with  all  the  incidents  of  that  relation. 


462 


MODUS  Ol     OIITAININC;  TITLK  TO  rKllSONAI,   PUOPKUTV. 


Hut  tlierc  is  no  evidence  lliat  Gill  and  the  plaintiff  intended 
a  tenancy  in  eonimon,  unless  such  a  relation  is  the  necessary 
couseciuencc  of  holding  that  the  title  passes  while  the  property 
remains  intermixed  and  unscparated.  Hut  if  tiie  intention  of 
the  i)arties  is  clear  tliat  the  title  shall  he  transferred,  we  should 
hold  that  such  intention  must  be  carried  into  effect,  and  if  the 
oidy  mode  of  accomplishing  the  purpose  of  the  parties  is  through 
the  medium  of  a  tenancy  in  common,  then  such  tenancy  is 
created.  The  authorities,  however,  do  recognize  a  species  of 
title  in  severalty  to  a  definite  portion  of  property  remaining 
intermixed  with  other  property  of  the  same  identical  kind. 
Thus  in  Gardner  v.  Dutch,  9  Mass,  427,  the  action  was  reple- 
vin for  seventy-six  bags  of  coffee  which  were  lying  in  common 
with  other  bags  belonging  to  third  persons.  These  seventy-six 
bags  were  not  distinguished  by  any  particular  marks,  or  by  a 
separation  of  them  in  any  manner  from  the  rest  of  the  coffee. 
The  court  says:  "If  the  plaintiff  was  in  the  fact  tenant  in 
common,  he  could  not  maintain  replevin;  but  he  was  not  tenant 
in  common.  Although  the  bags  belonging  to  him  had  no  dis- 
tinguishing marks,  he  might  have  taken  the  number  of  bags  and 
the  quantity  of  coffee  to  which  he  was  entitled  by  his  own  selec- 
tion while  they  remained  in  the  hands  of  VVelman  and  Ropes." 
If  then  the  title  of  the  plaintiff  was  in  a  sense  common,  yet  it 
was  only  quasi  joint ;  a  <-emporary  community  only,  was  con- 
templated. The  1  laintiff  was  entitled  to  take  immediate  poc- 
scssion  of  his  portion  without  let  or  hindrance  from  his  com- 
panion in  the  ownership  of  the  mass.  In  the  case  of  White- 
house  V.  Frost  it  was  held  that  this  title  is  such  that  the  plain- 
tiff might  maintain  trover  for  the  conversion  of  his  property 
against  his  companion  upon  proof  of  mere  demand  and  refusal 
to  deliver  to  the  plaintiff  his  share,  which  could  not  be  done  in 
ordinary  cases  of  joint  tenancy. 

A  new  trial  is  not  advised. 

See  note  to  Scott  v.  Wells,  post,  p.  467. 


lOI'KUTV. 

itiff  intended 
tlie  necessary 

the  property 
L-  intention  of 
d,  we  should 
ct,  and  if  the 
ies  is  through 
h  tenancy  is 
;  a  species  of 
ty  remain iiifj 
entical  i<iiul. 
)n  was  reple- 
^  in  common 
;e  seventy-six 
larks,  or  by  a 
of  the  coffee, 
act  tenant  in 
as  not  tenant 
n  iiad  no  dis- 
jr  of  bags  and 
lis  own  selec- 
and  Ropes." 
mmon,  yet  it 
ily,  was  con- 
imediate  poc- 
rom  his  com- 
ise  of  White- 
bat  the  plain- 

his  property 
d  and  refusal 
ot  be  done  in 


MODES  Ul'  ODTAININO  TITLE  TO  I'EUSONAI,  I'llOl'EllTV.       .|63 

WIIITCOMH  V.  WHITNEY. 

[24  Mich.  486.] 
Supreme  Court  of  Mic/ti^an,  1822, 

Cooi.EY,  J. — The  main  facts  in  this  case  are  undisputed.  On 
the  sixteenth  day  of  March,  1S71,  the  parties  made  a  contract 
evidenced  by  tlie  following  writing: 

"Detroit,  March  16,  1871.  Received  of  D.  Whitney,  Jr., 
five  hundred  dollars  on  account  for  all  the  upper  qualities  and 
select  common  and  cutting  up  or  fine  common  lumi)er  that  I 
make  at  Rock  Falls  in  town  of  Sand  Beach,  Michigan,  this 
season,  at  fair  price,  what  said  Whitney  can  afford  to  pay;  the 
lumber  is  to  be  delivered  on  rail  of  vessel  when  lurriber  is 
ready  to  ship,  or  when  the  vessel  is  ready  to  send  for  it." 
(Signed)  '-Iliram  Whitcomb." 

The  defendant  from  time  to  time  advanced  moneys  upon  this 
agreement,  and  received  one  cargo  of  lumber,  in  respect  to 
which  no  (|uestion  a  isr  On  September  22,  1871,  plaintiff 
wrote  defendant  as  follows:  "I  have  all  my  logs  now  sawed ; 
lumber  ready  to  ship.  The  sooner  you  send  a  vessel  the  better 
I  would  like  it.  I  think  there  will  be  seventy  M.  or  more." 
On  the  receipt  of  this  letter  defendant  sent  an  inspector  to 
Rock  Falls,  who  arrived  there  about  the  fourth  of  October,  and 
inspected  and  approved  of  about  sixty-four  M.  feet  of  the 
lumber,  acting  for  both  parties  in  so  doing.  The  lumber  when 
inspected  was  at  plaintiff's  mill,  but  as  fast  as  the  inspection 
proceeded,  it  was  hauled  on  the  dock,  some  forty  rods,  to  be 
ready  for  delivery  on  the  vessel  when  one  should  be  sent  for  it. 
The  inspection  was  completed  on  the  sixth  of  October,  and 
defendant  was  notified  thereof  on  the  eleventh  of  the  same 
month,  rwo  days  before  the  time  last  mentioned,  however, 
the  lumber  was  destroyed  by  fire,  without  any  fault,  neglect,  or 
carelessness  on  the  part  of  the  plaintiff,  and  when  this  fact 
came  to  the  knowledge  of  defendant,  he  refused  to  pay  for  the 
lumber,  and  this  suit  is  brought  for  the  value.  The  declara- 
tion contains  a  count  for  goods  sold  and  delivered,  and  also 
a  special  count  setting  out  the  facts;  averring  plaintiff's  readi- 
ness and  willingness  to  deliver  the  lumber  on  the    rail   of  the 


464       MODES  OF  OrTAINIXG  TITLE  TO  PERSONAL  PROPEllTY. 


vessel  when  one  should  he  sent  for  it,  but  that  before  defciulaiit 
sent  any  vessel  to  take  it,  though  he  had  ample  time  to  do  so, 
and  to  load  and  take  away  the  same,  the  lumber  was  destroyed 
by  fire  without  the  fault,  neglect,  or  carelessness  of  plai  itiff, 
by  means  whereof  the  defendant  becrme  liable  to  pay  a  fair 
price  therefor,  etc. 

It  does  not  seem  to  be  necessary  to  set  forth  tiic  various 
requests  to  charge  which  were  made  in  the  court  below,  nor 
the  charges  given ;  the  question  in  this  court  is  simply  this, 
whether,  under  the  facts  stated,  the  lumber  at  the  time  it  was 
accidentally  destroyed  had  or  had  not  beco.ne  the  property  of 
the  defendant  so  as  to  be  at  his  risk.  The  circuit  judge  in 
effect  held  that  it  had  not. 

In  support  of  the  ruling  of  the  circuit  judge  we  are  referred 
to  several  decisions,  some  of  which  present  questions  arising 
under  the  statute  of  frauds,  and  obviously  have  no  application 
here.  Others  were  decisions  upon  contracts  for  the  manufac- 
ture and  delivery  of  specific  articles,  under  which  no  title  couh' 
pass  until  the  specific  thing  was  completed  and  delivered,  or 
in  some  manner  identified  and  set  apart  by  the  act  of  the 
parties.  Johnson  v.  Hunt,  11  Wend.  137,  presented  the 
question  whether  lumber  which  was  being  got  ready  by  a  builder 
to  put  into  a  house  which  he  had  contracted  to  put  up  for 
another,  became  the  property  of  his  employer  before  it  was 
actually  built  into  the  house ;  and  the  court  held  that  it  did  not. 
This  was  clearly  correct,  as  up  to  that  time  the  contractor  had 
an  undoubted  right  to  use  it  for  any  other  purjiose  if  he  pleased. 
Comfort  V.  Kiersted,  26  Barb.  472,  was  the  case  of  a  contract 
for  shingles  to  be  manufactured,  and  which  by  the  terms  of  the 
contract  were  to  be  the  property  of  the  vendees,  at  eighteen 
shillings  a  thousand,  on -the  vendor's  premises  as  fast  as  manu- 
factured; he,  however,  agreeing  to  deliver  them  at  the  store 
of  the  vendees,  and  to  be  paid  three  dollars  a  thousand  at  that 
place.  The  contract  fixed  the  amount  to  be  delivered  at  one 
hundred  M.,  but  with  the  privilege,  on  the  part  of  the  vendees, 
to  increase  it  to  one  hundred  and  fifty  M.  The  court  held  that 
the  shingles  did  not  become  the  property  of  the  vendees  until 
in  some  way  designated  and  set  apart  so  as  to  be  capable  of 
being  identified  as  their  property.  The  sale  was  not  of  all  the 
party   might  make,  but  only  of  a   specified    quantity;  and  the 


r 


L  PROPEnTY. 

before  defciidaiit 
lie  time  to  do  so, 
ler  was  destroyed 
less  of  plai  itiff, 
ible  to  pay  a  fair 

orth  tiic  various 
court  below,  nor 
irt  is  simply  this, 
it  the  time  it  was 
2  the  property  of 
circuit   judge  in 

e  we  are  referrctl 
questions  arising 
ve  no  application 
for  the  manufac- 
lich  no  title  couh' 
uid  delivered,  or 
y  the  act  of  the 
,  presented  the 
ready  by  a  builder 
;ed  to  put  up  for 
yer  before  it  was 
:ld  that  it  did  not. 
le  contractor  had 
)ose  if  he  pleased, 
case  of  a  contract 
y  the  terms  of  the 
idces.  at  eighteen 
s  as  fast  as  manu- 
them  at  the    store 

1  thousand  at  that 

2  delivered  at  one 
rt  of  the  vendees, 
he  court  held  that 
the  vendees  until 
j  to  be  capable  of 
was  not  of  all  the 
quantity ;  and  the 


WHITCOMB    V.  WHITNEY. 


4G5 


court  illustrate  their  view  of  the  contract  by  saying,  the  vendor 
might  have  made  precisely  such  a  contract  with  another  person, 
in  which  case  the  shingles  "would  have  become  the  property 
of  the  one  or  the  other  of  the  parties  to  whom  he  had  agreed 
to  sell  them  according  to  their  designation."  This  case 
differs  from  Comfort  v.  Kierstcd  in  two  important  particu- 
lars: First.,  the  purchaser  here  was  to  have  all  the  lumber  of 
certain  kinds  which  should  be  cut;  and,  second.,  the  lumber 
coming  within  the  terms  of  the  contract  was  particularly  iden- 
tified and  designated  by  the  act  of  inspection.  Andrews  v. 
Durant,  11  N.  Y.  35,  presented  the  question  whether,  under 
a  contract  for  the  building  cf  a  vessel  of  certain  specified  di- 
mensions, to  be  delivered  complete  by  a  day  named,  for  a 
certain  price,  to  be  paid  as  the  work  progressed,  any  property 
in  the  vessel  passed  before  the  vessel  was  completed ;  and  it 
was  held  it  did  not.  That  case  also  has  very  little  bearing 
upon  the  one  now  under  consideration. 

What  is  the  case  here?  The  contract  is  for  the  purchase  of 
all  the  lumber  of  certain  grades  that  plaintiff  shall  manufacture 
at  Rock  Falls  during  the  season.  The  plaintiff  could  not  have 
sold  a  foot  of  it  to  any  other  person  without  a  distinct  violation 
of  his  contract  obligations.  From  the  time  of  its  manufacture 
nothing  would  need  to  be  done  to  determine  the  right  to  the 
defendant  in  any  particular  parcel,  but  to  have  it  properly 
settled  that  it  fell  within  one  of  the  grades  contracted  for.  An 
agent  duly  authorized  had  determined  that  as  to  all  the  lumber 
in  question,  and  had  done  what  amounted  to  an  acceptance  of 
it  on  the  part  of  the  defendant.  It  had  then  been  set  apart  and 
stored  in  a  proper  place  for  the  defendant,  and  was  subject  to 
his  order.  Nothing  remained  to  be  done  by  the  plaintiff  except 
to  deliver  it  on  the  rail  of  the  vessel ;  and  that  he  could  not  do 
until  the  vessel  was  sent.  Everything  now  depended  on  the 
action  of  the  defendant,  which  might  be  expedited  or  delayed 
as  should  suit  his  own  convenience.  Had  this  been  a  contract 
for  the  completion  of  a  carriage  from  specified  materials,  to  be 
delivered  when  sent  for,  and  had  it  been  fully  completed  and 
accepted,  so  that  nothing  remained  to  be  done  except  to  make 
the  manual  delivery  when  it  should  be  called  for,  the  setting 
apart  of  the  property  under  the  contract  could  not  have  been 
more  complete  and  unquestionable  than  it  was  here. 
30 


466       MODES  OF  OllTAIN-ING  TITLE  TO  PERSONAL  PIIOPERTY. 

Where  the  case  is  not  within  the   statute  of  frauds,  manual 
delivery  of  the    article    sold  is  not   essential  to  the    title    unless 
made  so  by  the  understanding  of  the  pnrties.     They  may  agree 
when  and'  on  what    conditions    the    property  in  the  subject  of 
such  a  contract  shall  pass  to  the  prospective  owner.— Dcnio,  J., 
in    Andrews  V.  Durant,    iiX.    V.  43.     Their    intention  must 
be    the  governing   consideration  in  every  case. — Channell,  B., 
in   Turloy  v.  Bates,  3  H.  tS:  C.  211.     The  title  may   pass  not- 
withstanding   the   price  is    yet  to    be    determined.— Turley  v. 
Bates,  supra;  Valpy  v.   Gibson,  4  M.  G.  &   S.  S37.     In  Oly 
phant  V.  l?aker,  5   Denio,  3S2,  it  is  said   to  be  "a  general  rule 
of  the  common  law,  that  a  mere  contract  for  the  sale  of  goods, 
where  nothing  remains  to  be  done  by  the  seller  before  making 
delivery,  transfers  the  right  of  property,  although  the  price  has 
not  been  paid,  nor  the  thing  sold  delivered  to  the  purchaser." 
And  of  the    numerous    cases  in  which    the    expression  is  used, 
that  if  anything  remains  to  be  done  by  the  seller  the  title  does 
not  pass,'Selden,  J.,  in  Terry  v.  Wheeler,  25  N.  Y.  525,  says 
they  only  go  to  the  length  of  showing,  that  where  something  is 
to  be  done  by  the   seller  to   ascertain  the  identity,  quantity,  or 
quality  of  the  thing  sold,  or  to  put  it  in  the  condition  which  the 
terms  of  the  contract  require,  the  title  does  not  pass.     And  he, 
therefore,  holds  with  the   approval  of  the  whole  court,  that  an 
agreement  by  the    vendor  of  lumber  to  transport  it  to   the  cars 
and    deliver  it  free  of  charge,  did  not  prevent  the  title  passing 
immediately  where  what  was  sold  was  selected  and  designated. 
Suppose  this  lumber  had  not  been  destroyed  ana  the  defend- 
ant's vessel    had    called  at  the  dock  for    it;  could    the  plaintiff 
have  refused  to  allow  him  to  take  the  lumber  away,  and  main- 
tained   replevin  for  it  if  he   had   done  so  ?     If  the   title  had  not 
passed,  he   could;  if   it  had,    he  could  not.     If  it  was  still  his 
property    and   at  his  risk,  he  might  have    sold  and  conveyed  a 
good  title  to  a  third  person  in  the  very  presence  of  the  defend- 
ant   after    his    vessel  had    arrived  to    take  it  away;  subjecting 
himself    only  to  a    liability  to    damages  on   his    contract  for  a 
failure  to  perform    it.     But  we  think  if  he  had   attempted  this, 
the  defendant  would  not  have  hesitated  to  say:  "This  property 
is  mine:  it  has  be-m  set  apart  specifically  for   me  by  contract, 
by  inspection,  and  by  designation;  by  every  act,  in  short,  which 
the  circumstances   admitted  of  being  done ;  the  vendor  owes  a 


PERTV. 

ids,  manual 
title    unless 
'  may  agree 
;  subject  of 
— Dcnio,  J., 
;ntijn  must 
lannell,  13., 
y   pass  not- 
— Turley  v. 
7.     In  Oly- 
jcneral   rule 
le  of  goods, 
■ore  making 
he  price  has 
purchaser." 
sion  is  used, 
he  title  does 
Y.  525,  says 
something  is 
quantity,  or 
an  which  the 
IS.     And  he, 
curt,  that  an 
t  to   the  cars 
title  passing 
1  designated. 
J  the  defend- 
the  plaintiff 
y,  and  main- 
title  had  not 
;  was  still  his 
d  conveyed  a 
if  the  defend- 
y;  subjecting 
;on;ract  for  a 
tempted  this, 
This  property 
;  by  contract, 
1  short,  which 
sudor  owes  a 


SCOTT    V.   WEI.LS. 


467 


service  to  me  in  putting  it  on  the  rail  of  the  vessel,  which  he 
can  cither  perform  or  be  liable  for  the  value  of;  but  if  he  per- 
forms it,  it  will  be  in  respect  to  property  previously  identified 
as  mine,  and  not  at  all  by  way  of  designation  or  measurement. 
Whoever  buys  this  lumber  of  him,  buys  what  has  not  only  been 
previously  bought  by  me,  but  what  has  been  set  apart  for  me 
and  placed  at  my  disposal  by  the  most  unequivocal  acts;  and  I 
have  therefore  become  vested  with  a  title  which  I  shall  main- 
tain and  enforce."  This  is  what  he  would  have  been  likely  to 
say  had  the  unfortunate  fire  not  occurred ;  and  this  the  law 
would  have  justified  him  in  saying.  It  follows  that  the  plain- 
tiff is  justified  in  demanding  payment  from  him  on  the  pur- 
chase. 

The  judgment  of  the  circuit  court  must  be  reversed,    and  a 
new  trial  ordered. 

See  note  to  Scott  v.  Wells,  post. 


SCOTT  V.  WELLS. 

[6  W.  &  S.  357;  40  Am.  Dec.  56S.] 

Supreme  Court    of  Pcm,.sylvania,   1843, 

,  Assumpsit  by  Daniel  Wells  against  Hugh  Scott  for  the  value 
of  a  raft  of  boards  sold  and  delivered  to  defendant.  Judgment 
for  plaintiff,  and  defendant  appeals. 

Gibson,  C.  J. — The  material  question  is,  whether  the  prop- 
erty passed  by  the  sale  and  delivery  in  the  first  instance.  The 
facts  were  not  contested.  Eldred,  the  vendor's  agent,  sold  a 
raft  of  boards  to  Tustin,  the  purchaser's  agent,  at  a  certain 
rate  the  thousand  feet,  and  delivered  it -to  a  person  employed 
by  the  latter  to  take  it,  at  the  purchaser's  expense  and  risk, 
from  Richmond  on  the  Delaware  to  a  place  on  the  Schuylkill, 
where  it  was  afterward  moored.  The  delivery  was  uncondi- 
tional, pursuant  to  the  contract,  and  complete ;  why  then  did  it 
not  pass  the  property  and  put  it  at  the  purchaser's  risk? 
Because,  say  the  purchaser's  counsel,  the  number  of  feet  con- 
tained,   or  the  sum   total  of  the  price,   was    not    settled    by 


46S       MOOES  OF  OnTAlNlNG  TITLE   TO   PERSONAL  PROPERTY. 

the    terms    of    the   contract;   and    the  consequence  attempted 
is.    that     the    sale    was     imperfect    in    its    members.     Had 
there  been  no  delivery,   or  a  conditional   one,   the   purchaser 
would  not  perhaps  have  been  bound  till  the  number  of  feet  and 
entire  price  had  been  ascertained;  but  the  parties  evinced,  by 
taking  the  last  step,  that  nothing  remained  to  be  done  in  order 
to  perfect  the  contract.     If  I  deliver  a  chattel  in  execution  of 
an  agreement  to  sell  it  in  terms  to  be  fixed  subsequently,  tbe 
ownership  and  risk  of  tbe  property  doubtless  remain  with  me 
in  tiie  meantime ;   but  such  delivery  is   conditional,  and   after 
an  ineffectual  effort  to  perfect  the  sale,  no  delivery  at  all.     On 
the  other  hand,  it  is  a  rule,  perhaps  without  an  exception,  that 
whenever  there    has  been   an   absolute  delivery  pursuant  to  a 
bargain  perfect  in  its  members,  or  capable  of  being  made  so  by 
reference   to   something   else   than    supplemental  conditions  by 
the  parties  or  an  arbiter  appointed  by  them,  the  ownership  of 
the  property  is  vested  by  it.     I  grant  that  a  sale  may  be  fatally 
defective  in  its  members;  and  that,  by  the  civil  as  well  as  the 
common  law,  the  specification  of  a  price  is  necessary  to  consti- 
tute it.     But  there  is  abundant  authority   to   show  that   it  may 
be  supplied  by  arbitrament,  where  there   is   a  provision  in  the 
contract  for  it;  and  why  not  by  calculation  where  the  contract 
furnishes  a  basis  for   it.'     Surely   the  price  is  certain  enough 
when  the   sum   of  it  can   be  obtained  by   computation.     For 
instance,  I  sell  my  fat  bullocks  grazing  in  a  particular  field,  at 
so  much  the  head ;  there  are  five  of  them,  but  the  number  is 
not   specified   in   the  contract;    they  are  delivered  and  driven 
away,  but  rush  over  a  precipice  and  break  their  necks.    Surely 
it  will  not  be  said  that  I  am  to  lose  the  price  of  them,  because 
the  aggregate  amount  of  it  or  the  number  was  not  specified  by 
the  terms  of  the  bargain.     Yet  the  principle  is  necessarily  the 
same,    whether   the    number  be   five  or   five   hundred.     But  I 
would  be  bound  to  bear  the  loss,   were  the  number,  however 
inconsiderable,  determinable  by  a  process  provided  in  the  con- 
tract.    But   where   no   such   process   is  provided,   may   not    a 
farmer  sell  his  growing  crop  by  the  bushel,  so  as  to  change  the 
ownership  of  it  in  the  meantime,    without  fixing  the  quantity 
by   an  estimate  before  it  is  threshed?     To  sell  by  the  bushel 
and  fix  the   quantity  would,   in   effect,  be  to   sell   for   a  round 
sum.     Had,  indeed,  the  agents  of  the  parties  before  us  made  it 


PERTV. 


attem 


)crs.     Had 
purchaser 
of  feet  and 
'vinced,  by 
me  in  order 
■xecution  of 
|uently,  the 
lin  with  me 
,  and   after 
at  all.     On 
eption,  that 
irsuant  to  a 
made  so  by 
inditions  by 
wnership  of 
\y  be  fatally 
well  as  the 
ry  to  consti- 
that   it  may 
vision  in  the 
the  contract 
rtain  enough 
tation.     For 
alar  field,  at 
le  number  is 
I  and  driven 
cks.    Surely 
lem,  because 
specified  by 
cessarily  the 
dred.     But  I 
ber,  however 
d  in  the  con- 
may   not    a 
to  change  the 
;  the  quantity 
■)y  the  bushel 
for  a  round 
re  us  made  it 


SCOTT    V.  WELLS. 


469 


a  condition  that  the  number  of  feet  in  the  raft  should  i)e 
counted  or  estimated  by  a  particular  person,  the  sale  would 
liavc  been  incomplete,  and  the  property  at  the  vendor's  risk  till 
that  was  done,  insomuch  that  he  might  have  passed  the  title  to 
another,  leaving  the  prior  vendee  to  his  action  for  a  breach  of 
the  contract;  but  by  the  bargain  actually  made,  the  vendor  sold 
just  so  many  feet  as  the  raft  actually  contained.  There  is  no 
process  pointed  out  to  ascertain  the  number ;  and  why  may  he 
not  recover  in  proportion  to  the  number  ascertained  by  the  evi- 
dence .''  A  sale  is  imperfect  only  where  it  is  left  open  for  the 
addition  of  terms  necessary  to  complete  it,  or  where  it  is  defi- 
cient in  some  indispensable  ingredient  which  can  not  be  sup- 
plied from  an  extrinsic  source.  IJut  when  possession  is 
delivered  pursuant  to  a  contract  which  contains  no  provision 
for  additional  terms,  the  parties  evince,  in  a  way  not  to  be  mis- 
taken, that  they  suppose  the  bargain  to  be  consummated.  Even 
where  actual  possession  has  not  been  taken,  the  ownership  and 
risk  pass  by  the  contract,  if  nothing  remains  to  be  done  to  the 
property  by  the  vendor,  such  as  counting,  measuring,  weighing 
or  filling  up,  to  ascertain  the  number,  quantity,  or  weight. 
Thus  in  Rugg  v.  Minett,  11  East,  310,  turpentine  had  been 
sold  at  so  much  the  hundred  weight  in  casks,  to  be  taken  at  the 
marked  quantity,  except  two  out  of  which  the  others  were  to 
be  filled  up  before  delivery;  and  those  two  were  sold  as  con- 
taining indefinite  quantities.  The  buyer  employed  a  person  to 
do  the  filling,  but  before  he  completed  it,  the  warehouse,  with 
its  contents,  was  destroyed  by  fire;  and  it  was  held  that  the 
property  in  those  filled  up  had  passed  to  the  buyers,  because 
nothing  remained  to  be  done  to  them  by  the  vendors.  Now 
the  number  of  them,  like  the  number  of  feet  in  this  raft,  could 
be  ascertained  only  by  extrinsic  proof;  and  the  case,  therefore, 
is  in  point.  In  perfect  consistence  with  it  is  Zagury  v.  Furnell, 
2  Camp.  340,  in  which  a  sale  of  goaf  skins  by  the  bale,  con- 
taining a  specified  number,  was  held  not  to  pass  the  property, 
because  the  usage  of  the  trade,  which  was  consequently  a  part 
of  the  contract,  made  it  the  duty  of  the  seller  to  count  the  skins 
in  each  bale  before  they  were  delivered.  So  in  Hanson  v. 
Meyer,  6  East,  614,  an  agreement  to  sell  all  the  vendor's  starch 
in  a  particular  warehouse,  at  so  much  the  hundred  weight,  the 
number  of  hundreds  to  be  ascertained  before  delivery,  did  not 


o 


MODES  OF  onTAlXIXG  TITI.K  TO  PRIISONAI.  rROl'EKTY. 


47 

presently  pass  the  ownership.     There   is  no  hick  of  authority 
for  the  principle,  that  while  anvthins  remains  to  be  done  by  the 
terms  ..f  the  contract,  to  ascertain  the  entire  price,  the  property 
remains  at  the  risk  of  the   vendor;    and    in    Withers  v.  Lyss,  4    ■ 
Camp.   237,    the    sale  of    an  nnascertained    (luantity    of   rosm 
in  a  particular  warehouse,  not  taken  away,  but  requested  to  be 
kept  in  the  names  and  at  the  disposal  of  the  purchasers,  was 
held  not   to   have   been  completely  delivered;   but  it   certamly 
would  have  been  otherwise  had  the  actual  custody  of  it  been 
chan<,'ed.     In  that  event  the  sale  would  have  been  perfect,  pro- 
vided the  quantity  could  have  been  ascertained  by  proof.     In 
the  case  before  us,  the  raft  was  actually  delivered;  and,  in  the 
absence  of  stipulation  to  the  contrary,  the  delivery  evinced  that 
no  more  was  to  be  done  by  the  seller.     Had  he  been  unable  to 
prove  the  number  of  feet  which  were  contained  in  it,  the  sale 
Nvould  have  been  incomplete,  and  he  could  not  have  recovered. 
As  he  was  able  to  satisfy  the  jury  on  that  head,  we  must  take 
it  that  the  title  passed  to  the  vendee.   Did  the  subsequent  trans- 

actions  revest  it? 

The  jury   were   left  to  judge   of  the   authority  given  to  the 
accents   as   a   question   of   fact;    and    as   there  was  evidence  to 
lound   a  conclusion  that  their  powers  were  general,  we  must 
treat  the   case   as   if  the  fact  were   so;    and   we  must  say  that 
Eldrcd  was  competent,  with  the  assent  of   the   other  party,  to 
rescind  the  sale,  revest  the  title,  and  make  a  conditional  sale  to 
the  same   vendee  0.1  terms  which  would  leave  the  property  at 
his  principal's  risk  till  the  conditions  were  performed.     Was 
that  done  ?     It  certainly  was  not  intended.     When  he  first  met 
Scott,  the  purchaser,  there  was  no  proposal  on  either  side  to 
recede  from  the  bargain  or  alter  its  terms.     On  the  contrary, 
Scott  expressly  ratified  what  had  been  done,  and,  in  addition, 
proposed  to  fix  the  number  of  feet  by  an  estimate,  to  which 
Eldred  acceded,  and  a  day  was  appointed  to  meet  at  the  raft 
anc.  make  it.     This  new  agreement,  it  will  be  remarked,  was 
not  only  an  independent  but  a  conditional  one,  and  being  itself 
imperfect,    was  of  no  force  being  unexecuted.     At  the   day 
appointed,  Eldred  and  Tustin  came  and  met,  not  Scott,  but  a 
person  on  his  part,  who  said  that  Scott  would  attend  ;  but  he 
came  not,  and  nothing  was   done.     Eldred   then    sought  him, 
f^urd  him,  and  agreed  with  him  to  have  the  raft  taken  out  o£ 


'EUTY. 

t  authority 
one  by  the 
le  property 
V.  Lyss,  4 
y    of  rosin 
csted  to  he 
lasers,  was 
it  certainly 
of  it  l)cen 
crfect,  pro- 
proof.     In 
and,  in  the 
vinced  that 
n  unable  to 
it,  the  sale 
:  recovered, 
e  must  take 
riuent  trans- 
given  to  the 
evidence  to 
al,  we  must 
ust  say  that 
ler  party,  to 
ional  sale  to 
:  property  at 
med.     Was 
he  first  met 
jither  side  to 
:he  contrary, 
in  addition, 
ite,  to  which 
;t  at  the  raft 
marked,  was 
i  being  itself 
At  the   day 
:  Scott,  but  a 
ttend  ;  but  he 
sought  him, 
;  taken  out  o£ 


SCOTT    V.  WELLS. 


471 


the  water  and  counted  at  a  day  named.  Eldred  again  attended 
and  Scott  did  not,  so  that  the  second  agreement  turned  out  to 
be  as  abortive  as  the  first,  and  both  became  as  inoperative  as  if 
they  had  not  been  made.  Moreover,  it  is  obvious  that  neither 
of  them  was  intended  to  impair  or  alter  the  sale.  The  object, 
a  distinct  and  independent  one,  was  to  relieve  the  purchaser 
from  the  alternative  of  taking  the  agent's  word  for  the  number 
of  the  feet,  or  taking  the  troul>le  to  ascertain  it  for  himself. 
To  hold  that  this  turned  the  previous  absolute  sale  into  a  con- 
ditional one,  out  of  which  the  buyer  could  creep  by  refusing  to 
cooperate  in  what  was  further  to  be  done,  and  thus  leave  the 
property  on  the  vendor's  hands  at  a  place  remote  from  the 
market,  would  be  not  only  unreasonable  but  inconsistent  with 
the  evident  purpose  of  the  parties. 

As  to  tlie  declarations  of  Scott,  on  the  one  hand,  that  he  had 
once  considered  himself  the  owner  of  the  raft,  and  the  consent 
of  Eldred  to  remove  it  to  Harding's  landing,  on  the  other,  it  is 
enough  to  say  that  these,  though  indicative  of  the  understand- 
ing of  the  contract  by  the  parties,  were  not  conclusive  of  the 
title,  and  that  they  were  properly  left  to  the  jtiry.  What  is 
conclusive  of  it,  however,  is  that  the  terms  of  the  sale  were 
unconditional  and  sufficiently  certain  to  pass  the  property  in 
the  first  instance  ;  that  there  was  no  evidence  of  an  act  done  to 
rescind  or  alter  it,  and  that  when  the  subsequent  negotiations 
failed,  they  left  the  contract  where  they  found  it. 

Judgment  afiirmed. 

CoxsiLT— Foot  V.  Marsh,  51  N.  Y.  288;  Linghain  v.  Eggleston,  27 
Mich.  324;  Hahn  v.  Fredericks,  30  Mich.  223,  18  Am.  Rep.  117;  Groff  v. 
]5eiche,  62  Mo.  400;  Jennings  v.  West,  40  Kan.  373;  Smith  v.  .Sparkman, 
55  Mass.  647,  30  Am.  Rep.  537;  Elgee  Cotton  Cases,  22  Wail.  280; 
lliirtf  V.  Hires,  II  Vroom,  585,  29  Am.  Rep.  386;  F'erguson  v.  Bank,  14 
Bush.  535,  29  Am.  Rep.  418;  Hutchinson  v.  Hunter,  7  Pa.  St.  140;  Mc- 
Laughlin V.  Piatti,  27  Cal.  451;  Cloke  v.  Shafroth,  137  111.  393;  Hoff- 
man v.  King,  58  Wis.  314;  Smart  V.  Batchelder,  57  N.  H.  140;  Kim- 
berlv  V.  Patchin,  19  N.  Y.  330;  Scudder  v.  Worster,  ii  Cush.  573; 
Commercial  Bank  v.  Gillette,  90  Ind.  268. 


472       MODKS  OF  OBTAIXlNr.  TITI.K  TO  I'F.RSONAL  rUOI-EUTY. 

§  84.    Same— Acts  to  be  performed  by  parties. 

PRESCOTT  V.  LOCKE. 

[51  N.  II.  94;   12  Am.  Rep.  5.^] 

Supreme  Judicial  Court  of  New  Hampshire,  1871. 

The  plaintiff  sold  defendant  one  hundred  thousand  vv.ilnut 
spokes,  at  forty  dollars  per  thousand,  which  spokes  were  to  be 
sawed  by  the  plaintiff  and  delivered  to  the  defendant  in  lots  of 
ten  thousand  each.  But  before  delivery  plaintiff  understood 
that  he  was  to  count  the  spokes  to  be  delivered,  and  the  defend- 
ant also  understood  that  he  was  to  count  them  before  takings 
them  from  the  mill.  The  first  lot  of  ten  or  twelve  thousand 
was  selected  by  plaintiff  and  piled  up,  but  not  counted  by  the 
defendant.  The  plaintiff  afterward  counted  the  selected  pile 
and  charged  them  to  the  defendant,  but  before  they  were 
counted  or  removed  by  the  defendant  they  were  burned  with 
the  mill. 

Foster,  J. — The  contract  in  this  c.ise  was  not  for  the 
olaintiff's  labor,  but  was  for  the  sale  of  merchandise  to  be  sub- 
sccjuently  .nanufactured. 

It  was  not  a  contract  to  make  spokes  for  the  defendants ;  but 
it  was  an  agreement  that  the   defendants   "would  buy   of  the 
plaintiff  what  walnut  spokes  he  should  saw  at  his  mill,  at  forty 
dollars  per  thousand"  for  the  manufactured  article. 

Where  the  contract  is  for  a  chattel  to  be  made  and  delivered 
it  clearly  is  a  contract  for  the  sale  of  goods.  In  such  case  the 
party  supplying  the  chattel  can  not  recover  for  his  labor  in 
making  it.  If  the  contract  be  such  that  when  carried  out  it 
would  result  in  the  sale  of  a  chattel,  the  party  can  not  sue  for 
labor;  but  if  the  result  of  the  contract  is  that  the  party  has 
done  work  and  labor  which  end  in  nothing  that  can  become  the 
subject  of  a  sale,  the  party  can  not  sue  for  goods  sold  and  deliv- 
ered. The  case  of  an  attorney  employed  to  prepare  a  deed  is 
an  illustration  of  this  latter  proposition.  It  can  not  be  said 
that  the  paper  and  ink  he  uses  in  the  preparation  of  the  deed 
are  goods  sold  and  delivered.  Per  Blackburn,  J.,  in  Lee  v. 
Griffin,  i  E.,  B.  &  S.  273. 


iai 


I'EUTY. 


rilESCOTT    V.   LOCKE. 


473 


,  1871. 

and  walnut 
were  to  be 
nt  in  lots  of 
understood 
the  defend- 
fore  takings 
ve  thousanil 
11  ted  by  the 
selected  pile 
;  they  were 
jurned  with 


not   for   the 
le  to  be  sub- 

ndants ;  but 

buy   of  the 

mill,  at  forty 

nd  delivered 

iuch  case  the 

his   labor  in 

irried   out  it 

not  sue  for 

the  party  has 

1  become  the 

»ld  and  deliv- 

are  a  deed  is 

not  be  said 

of  the  deed 

J.,  in  Lee  v. 


I 


Illustrations  of  the  former  propositions  are:  Where  a  car- 
riage was  ordered  to  be  made,  which  would  never,  but  for  the 
order,  have  had  an  existence,  but  when  made  becomes  the  sui'- 
ject  of  sale.  This  principle  has  been  applied  even  to  a  contract 
for  the  making  of  a  coat,  a  statue,  a  set  of  artificial  teeth,  from 
materials  provided  by  the  maker,  even  where  the  peculiar  skill 
of  the  maker  is  considered  to  be  an  important  element  in  the 
consideration  of  the  contract;  for  the  value  of  the  skill  and 
labor,  as  compared  with  that  of  the  material  supplied,  is  not  a 
criterion  to  determine  what  the  contract  is. 

The  true  construction  in  this  case  is,  that  the  contract  was  for 
the  future  sale  of  the  spokes,  when  they  should  be  in  a  state  tit 
for  delivery.  The  vendor,  so  long  as  he  was  sawing  the  lim- 
ber and  doing  any  other  work  preparing  it  for  delivery  in  the 
form  of  spokes,  was  doing  work  for  himself  upon  his  own 
materials,  and  not  for  the  defendants.  Smith  v.  Surman,  9  13. 
&  C.  561. 

Where  the  contracting  parties  conte:. plate  a  sale  of  goods, 
although  the  subject-matter  at  the  time  of  making  the  contract 
does  not  exist  in  goods,  but  is  to  be  converted  into  that  state  by 
the  vendor's  bestowing  labor  on  his  own  raw  materials,  that  is 
a  case  of  a  contract  for  sale,  within  the  statute  of  frauds. 
Garbutt  v.  Watson,  5  B.  &  A.  613  ;  Smith  v.  Surman,  before 
cited. 

This  was  a  contract  for  the  purchase  of  such  walnut  spokes 
as  the  plaintiff  should  saw  at  his  mill,  not  exceeding  one  hun- 
dred thousand,  to  be  delivered  at  the  mill  in  lots  of  about  ten 
thousand  each,  subject  to  the  defendants'  selection.  It  would 
be  absurd  to  say  that  the  defendants  were  to  select  the  spokes 
before  they  had  become  the  subject  of  sale,  prepared,  by  the 
previous  work  of  the  vendor,  for  the  market.  The  plaintiff 
was  to  convert  the  timber  into  spokes,  and,  when  so  converted, 
the  delivery  and  acceptance  thereof  were'  to  occur.  Until  that 
time  the  contract  would  remain  executory,  and  the  title  to  the 
property  would  continue  to  be  in  the  plaintiff.  If  the  plaintiff 
had  caused  or  permitted  the  spokes  to  be  improperly  or  imper- 
fectly manufactured,  or  to  be  made  from  other  than  good  wal- 
nut timber,  the  defendants  would  not  have  been  bound  to  accept 
or  pay  for  them.     Gorham  v.  Fisher,  30  Vt.  428. 


474       Monies  ()!•    OUTAININO    l  l  II.E  to  I'KHSONAI.   IMIOI'KKTV, 


Still  the  plaintiff  would  not  necessarily  lose  the  price  of  his 
hilior.  If  the  i)urchaser  did  not  take  the  ^'oods,  others  prol)a- 
l)Iy  would.  The  lal)or  bestowed  on  them  was  in  the  line  of  his 
business,  and  we  may  reasonably  infer  that  his  labor  wDuld 
have  been  bestowed  in  the  production  of  sucii  goods  had  the 
contract  not  been  made.     Cason  v.  Cheely,  6  Ga.  554. 

It  is  very  clearly  settled  by  the  more  recent  Enj^lish  and 
American  cases,  that  it  is  not  essential  that  tiie  jjoods  be  capable 
of  delivery  at  the  time  of  makinjj  the  contract,  to  bring  it 
within  the  statute  of  frauds.  Pitkin  v.  Noyes,  4S  N.  II.  39S; 
Finney  v.  Apgar,  31  \.  J.  266. 

In  Pitkin  v.  Noyes,  it  is  said,  "If,  however,  a  person   con- 
tract to  make   and  deliver,   at   a  future  time,  certain  goods  at 
prices  then  lixed,  or  at   reasonable  prices,    the  essence   of    the 
agreement  being  that  he  will   bestow   his  own   labor   and   skill 
upon  the  manufacture,  it  is  held  not  to  be  within  tiie   statute;" 
and  such  is  undoulitedly  the  law.     In  that  case  it  was  deemed 
proper  to  leave  it  to  the  jviry,  in  view  of  all  the  circumstances 
of  the  case,  to  iind  whether  the  contract  was  essentially  for  the 
labor  and  materials  of  the  defendant  in  raising  the  potatoes,  so 
that   he   was   bound   himself   to  raise   them,  or  whether  it  was 
substantially  a  sale  of  potatoes  which  he    might  raise  himself, 
or  procure  by  purchase  or  otherwise.    The  remark  of  the  court 
that  "it  is  obvious  that  the  plaintiffs  might  have  an  interest  in 
stipulating  that  the  defendant  should  himself  raise  the  potatoes" 
preceded   this   disposition   of   the  case,  and  the  considerations 
suggesting  that  remark  apparently   controlled   the   disposition 
of  it. 

We  understand  the  expression  quoted  from  Pitkin  v.  Noyes 
to  mean,  not  precisely  what  is  literally  imported  by  it,  but 
rather  that  it  might  be  obvious  that  the  plaintiffs  might  have  an 
interest  in  stipulating  that  the  potatoes  should  be  raised  upon 
the  defendant's  land,  which  might  be  regarded  as  peculiarly 
adapted  to  the  raising  of  potatoes  of  a  superior  quality.  And 
if  that  be  the  construction  to  be  given  to  the  remark,  the  con- 
sideration and  the  result  were  well  enough. 

But  in  the  present  case,  it  appears  that  it  was  no  part  of  the 
essence  of  the  contract  that  the  plaintiff  should,  with  his  own 
hands  and  by  the  exercise  of  his  own  peculiar  skill,  manufac- 
ture these  spokes,  which  the   defendants  were   only  bound   to 


I'KIMV. 


I'KEsiurr  V.  i.oLKE. 


175 


price  of  his 
icrs  proba- 
!  line  of  his 
abor  would 
D(ls  had  the 

54- 

nj^lisli    and 

be  capable 

to   bring  it 

S\  II.  29S; 

)erson  con- 
in  floods  at 
nee  of  the 
r  and  skill 
c  statute;" 
vas  deemed 
cumstanccs 
iaily  for  the 
potatoes,  so 
ether  it  was 
isc  himself, 
of  the  court 
1  interest  in 
le  potatoes" 
nsiderations 
disposition 

:in  V.  Noyes 
1  by  it,  but 
ight  have  an 
raised  upon 
s  peculiarly 
ality.  And 
irk,  the  con- 

a  part  of  the 
ith  his  own 
11,  manufac- 
ly  bound   ta 


take  after  tlicy  had  been  culled  out  and  selected  by  themselves. 

I'liis  being  a  contract  for  the  sale  of  chattels,  we  coMie,tiicn, 
to  the  question  whether  there  was  such  a  delivery  and  accept- 
ance of  the  spokes  as  transferred  the  property  and  title  from 
the  plaintiff  to  the  defendants;  for  it  is  conceded  that  there 
was  no  part  payment,  earnest,  or  memorandum  given,  within 
tiie  terms  of  the  statute  of  frauds,  (ien.  Stats.,  ch.  201,  sec. 
If.  And,  therefore,  the  plaintiff  can  not  maintain  assumpsit 
founded  upon  the  contract,  either  for  goods  bargained  and 
sold,  or  for  goods  sold  anil  delivered,  without  showing  s',<ch 
delivery  and  acceptance  as  shall  be  suflicient  to  take  the  cas-; 
out  of  the  operation  of  the  statute. 

In  his  chapter  entitled  "At  whose  risk  the  thing  sold  is, 
during  the  intermediate  time  between  the  ccmtract  anil  the 
delivery,"  M.  Pothier  discourses  as  follows:  "Having  estab- 
lished the  principle  that  the  thing  sold  is  at  the  risk  of  the 
buyer  as  soon  as  the  contract  is  perfected,  it  becomes  necessary 
to  inquire  when  the  contract  receives  its  j^erfection ;  and  gener- 
ally, the  contract  of  sale  is  considered  to  be  perfect  as  soon  as 
tiic  parties  are  agreed  upon  the  price  for  which  the  thing  is  sold. 

■•This  rule  holds  when  the  sale  is  of  a  specific  thing,  and  is 
absolute  (pure  ct  sinifilc)  :  si  id,  (juod  vciiicrit  uppnrcat  quid, 
quale,  qua)itiiin  sit,  et  frctium,  et  pure  vcnit;  pcrfecta  est 
cnipiio, 

"If  the  sale  is  of  things  which  consist  in  qitantitatc,  and 
which  are  sold  by  weight,  number,  or  measure — as,  if  one  sells 
ten  casks  of  the  corn  which  is  in  a  certain  granary,  ten  thousand 
pounds  of  sugar,  or  one  hundred  carp,  etc. — the  sale  is  not 
perfect  until  the  corn  is  measured,  the  sugar  weighed,  or  the 
carp  counted;  for,  until  such  time,  tiottdiiin  apparct  quid 
vcnierit. 

"It  does  not  yet  appear  which  is  the  corn,  which  is  the  sugar, 
or  the  carp,  that  makes  the  object  of  the  sale,  since  that  object 
can  only  be  the  corn  that  is  to  be  measured,  the  sugar  that  is  to 
be  weighed,  or  the  carp  that  are  to  be  counted. 

"It  is  true  that  before  the  measuring,  weighing,  or  counting, 
and  at  the  instant  of  the  contract,  the  engagements  which 
result  from  it  exist.  The  buyer  is  then  entitled  to  an  action 
against  the  seller  for  a  delivery  of  the  thing,  and  the  seller  is 
entitled  to  an   action    against   the   buyer  for  a  recovery  of  the 


.\-jCt       MODKS  OK  OIllAININi;    IITMC  TO  I'l.ltSONAl,   l-UOCKItTV. 

piici".  iipon  offc'iiiiuf  fo  (U-livcr  it.  [It  will  lie  horiiL'  in  niiiul 
that  tlif  author,  ticatiiij^  of  tlic  civil  law,  is  not  finhanassi-d  hy 
the  coiisiiiciation  of  the  statute  of  frauds.]  Hut,  though  the 
enj^aj^'ement  of  tlie  seller  subsists  from  that  time,  it  may  l>e 
truly  said  that  it  is  not  yet  perfect,  in  this  respect,  that  as  yet  it 
is  onlv  an  object  which  is  iudeternnnate,  and  which  can  he 
determined  only  by  the  mcasurin};,  weighing,  or  counting.  For 
this  reason,  until  the  thing  is  measured,  weighed,  or  counicd, 
it  does  not  become  at  the  risk  of  the  buyer;  for  the  risk  can 
not  fall  but  upon  some  determinate  thing. 

"This  rule  holds,  not  only  when  the  sale  is  of  a  certain 
quantity  of  merchandise,  to  be  taken  from  a  magazine  which 
contains  a  larger  quantity,  because,  in  such  a  case,  as  we  have 
seen,  until  the  measuring  or  weighing,  that  which  is  sold  docs 
not  consist  of  any  determinate  body  or  thing  upon  which  the 
risk  may  fall ;  it  also  holds  when  the  sale  is  of  the  entire  quan- 
titv  contained  in  a  magazine  or  granary,  provided  it  is  made  at 
the  rate  of  so  much  the  pound,  or  so  much  the  measure,  etc. 

'•The  sale  in  this  case  is  not  considered  as  perfect,  and  the 
thing  sold  is  not  at  the  risk  of  the  buyer,  until  it  is  measured  or 
weiglied ;  for.  until  that  time,  fion  apparct  qtiatitiim  vciticrit. 
The  price,  being  constituted  only  for  each  pound  which  shall 
be  weighed,  or  for  each  cask  which  shall  be  measured,  is  not 
yet  determined,  before  the  weighing  or  measuring;  and  conse- 
quently the  sale,  before  that  time,  is  not  so  far  perfect  that  the 
risk  of  the  thing  may  fall  upon  the  buyer.  He  ought  not  to  be 
charged  with  it  until  after  the  goods  are  weighed  or  measured. 
"Hut  if  the  goods  are  not  sold  by  weight  or  measure,  but 
fcr  avcrsioiiciii,  that  is,  in  bulk,  and  for  a  single  and  only  price 
— in  such  case  the  sale  is  perfect  from  the  instant  of  the  con- 
tract, and  from  that  time  these  goods,  the  same  as  all  others, 
are  at  the  risk  of  the  buyer." 

The  learned  writer  then  proceeds  to  lay  down  certain  rules 
for  tletcrmining  when  the  sale  is  considered  as  made  per  aver- 
sioiiciii,  mmX  when  by  measure;  and  in  the  latter  category  he 
places  the  case  where  the  price  is  expressly  agreed  upon  for 
each  measure:  "whether  the  contract  imports  that  it  is  of  so 
many  bushels  of  the  grain  in  such  a  granary,  at  the  rate  of  so 
much  the  bushel,  or  of  a  heap  cf  grain,  which  is  in  such  a 
granary,  and  which  contains  a  thousand  bushels,  at  the  rate  of 
so  much  a  bushel." 


lOCKItTV. 

oriic  in  mind 
ihanassi-d  liy 
t,  tlu/uph  tlie 
ic,  it  may  l>e 
tliat  as  yet  it 
^liicii  cim  l)c 
unting.  For 
,  or  coiimcd, 
r  the  risk  can 

of  a  certain 
j^azine  whicii 
e,  as  we  have 
li  is  sold  does 
»on  whicli  the 
:  entire  quan- 

it  is  made  at 
;asnre,  etc. 
rfect,  and  the 
)  measured  or 
turn  vciiicrit. 
d  which  sliall 
asiircd,  is  not 
g ;  and  conse- 
irfcct  that  the 
ight  not  to  he 
or  measured, 
measure,  but 
nd  only  price 
It  of  the  con- 
as  all  others, 

1  certain  rules 
ladc  per  aver- 
n-  category  he 
reed  upon  for 
hat  it  is  of  so 

the  rate  of  so 
1  is  in  such  a 

at  the  rate  of 


rtlKSlDTT    V.   I.OCKE. 


177 


This  sale  is  considered  to  he  made  f>cr  avcrsioticiu  "wlien  it 
is  made  for  a  single  price,  not  of  so  many  measures  of  such  a 
tiling,  hut  of  such  n  thing  which  is  declared  to  contain  so  many 
nieasures." 

In  such  case  the  expr.^ssion  of  the  numher  has  no  other 
effect  than  to  oblige  the  seller  to  make  an  allowance  for  the 
defect  of  (luautity.     Pothier,  Contr.  of  Sale,  sees.  309,  310. 

Tried  by  these  tests,  which  we  believe  to  be  sound,  it  is 
(|uite  clear  that  the  contract  before  us  was  for  a  sale  by  meas- 
ure or  count,  aiul  not  n  sa\c per  avcrsioncm ;  and  that  the  spokes 
were  at  the  risk  of  the  seller  until  the  sale  was  perfected,  whicii 
could  not  he  so  long  as  non  apptint  qiiantum  vciiict. 

Now  the  question  here  is,  Was  this  sale  perfected,  so  as  to 
pass  the  title  to  and  impose  the  risk  upon  the  purchaser.' 

Whatever  may  have  been  the  intention  or  understanding  of 
either  pnrty,  or  of  both,  it  must  be  controlled  by  the  statute  of 
frauds.  The  statute  is  highly  beneficial,  indispensable  indeed, 
and  it  must  receive  a  favorable  and  liberal  construction,  iit  sit 
fniis  litium^  and  to  prevent  perjury,  and  the  mistakes  and 
dangers  resulting  from  evidence  founded  on  imperfect  inemory. 

liy  the  terms  of  the  statute,  in  the  absence  of  part  payment 
or  a  written  memorandum,  the  buyer  must  "accept  and  actually 
receive"  the  property.  It  follows,  therefore,  that  although,  as 
a  matter  of  fact,  in  a  particular  case,  there  may  be  acceptance 
without  delivery,  or  delivery  and  reception  without  acceptance, 
both  conditions  must  be  fulfilled  before  the  title  and  risk  can 
be  transferred.  And  the  acceptance  must  be  clear  and  une- 
quivocal.    Nicholle  v.  Plume,  i  C.  &  P.  272. 

In  thiy  case,  the  culling  of  the  spokes  was  not  an  acceptance 
of  quantity,  but  only  of  quality — for  then  the  quantity  and  price 
of  the  quantity  was  indeterminate ;  still  there  was  a  manual 
caption  of  the  spokes  by  the  buyers,  at  the  place  of  delivery. 
Such  delivery  and  reception  was  not  enough  to  transfer  the 
title  and  risk,  without  an  acceptance  of  the  property  as  a  deter- 
mined quantity  ;  for  such  an  acceptance  depended  upon  a  count- 
ing of  the  spokes. 

But  after  the  culling  of  the  spokes  by  the  buyers,  the  seller 
counted  them,  and  charged  them  upon  his  book  to  the  buyers. 
Whether  this  act  of  the  seller  can  be  regarded  as  a  completion 
of  the  purchase,  so  as  to  transfer  the  title  and  risk  to  the  defend- 


47S       MODES  OF  OnTAIXINT,   TITLE  TO  PERSONAL  PROPERTY. 

ants,  mav  be  a  question  to  be  governed  l)y  the  understanding 
and  intention  of  the  parties.  It  must,  of  course,  be  a  mutual 
understanding  and  intention;  otherwise  it  is  no  element  in  the 
contract.  It  is  manifest  that  the  defendants  are  not  to  lie  bound 
and  conchided  as  to  quantity,  and  consequently  as  to  price,  un- 
less they  have  expressly  or  impliedly  agreed  to  be  so  bound. 

Upon  this  subject  the  case  finds  that  nothing  was  said  about 
counting  the  spokes.  The  plaintiff  understood  that  he  was  to 
count  each  lot  selected  by  the  defendants,  and  the  defendants 
understood  that  they  were  to  count  each  lot  selected  by  them, 
before  they  took  them  from  the  mill ;  but  it  does  not  appear 
that  both  parties  understood  the  defendants  were  to  count  the 
spokes.  Still,  if  the  defendants  understood  they  were  to  count 
the  spokes,  it  is  manifest  they  understood  that  they  were  not  to 
be  bound  by  the  plaintiff's  count. 

Could  the  plaintiff  have  understood  the  reverse  of  this?  If 
so,  would  he  not  have  rendered  a  bill  of  the  quantity?  The 
year  preceding,  the  defendants  had  purchased  of  the  plaintiff 
about  twenty-seven  thousand  spokes,  which  were  selected  by 
the  defendants  and  counted  by  both  parties  before  they  were 
removed  from  the  mill.  This  fact  would  tend,  in  some  degree, 
to  show  thac  the  plaintiff,  as  ^  ell  as  the  defendants,  under- 
stood that  the  latter  were  not  bound  to  accept  the  count  of 
the  former  as  true. 

Tlie  evidence  of  both  defendants  was  admissible,  to  show 
their  independent  understanding  in  this  particular — Graves  v. 
Graves,  45  N.  II.  323;  Hale  v.  Taylor,  Id.  406 — provided  such 
understanding  does  not  come  in  conflict  w^ith  legal  principles 
or  an  express  provision  of  law  of  superior  and  controlling  effect. 
Blake  v.  White,  13  N.  H.  272;  Ilale  v.  Taylor,  before  cited; 
Delano  v.  Goodwin,  48  N.  H.  206;  Conk  v.  Bennett,  51  N. 
II.  85. 

This  is  a  question  of  the  construction  of  the  agreement  be- 
tween the  parties ;  and  it  is  clear  that  the  parties  have  not 
expressed,  by  the  terms  of  the  contract  nor  by  their  acts,  their 
intention  in  a  manner  that  leaves  no  room  for  doubt.  The  in- 
tention, therefore,  must  be  collected  from  the  whole  agreement 
and  the  conduct  of  the  parties,  and  it  must  be  governed  by  the 
settled  legal  rules  of  construction,  if  any  such  rules  are  found 
to  be  apjjlicable. 


SIAL  PROPERTY. 

the  understanditig 
lursc,  be  a  mutual 
no  element  in  the 
are  not  to  he  bound 
itly  as  to  price,  un- 
to be  so  bound. 
ng  was  said  about 
)od  that  he  was  to 
md  the  defendants 
selected  by  them, 
t  does  not  appear 
were  to  count  the 
they  were  to  count 
at  they  were  not  to 

everse  of  this?  If 
;he  quantity  ?  The 
cd  of  the  plaintiff 
1  were  selected  by 
s  before  they  were 
nd,  in  some  de,<jree, 
defendants,  undcr- 
ccept  the  count  of 

dmissible,  to  show 
ticular — Graves  v. 
406 — provided  such 
th  legal  principles 
id  controlling  effect, 
lylor,  before  cited ; 
V,    Bennett,   5 1  N. 

the  agreement  be- 
e  parties  have  not 
by  their  acts,  their 
or  doubt.  The  in- 
lie  whole  agreement 
be  governed  by  the 
ich  rules  are  found 


PRESCOTT    V.    I.fKKE. 


■179 


Mr.  Blackburn  (Sales  151-3)  has  discovered  two  rules,  which 
are  in  terms  nearly  equivalent  to  those  in  which  they  are  laid 
down  by  Pothier  as  the  rule  of  the  civil  law. 

The  first  is,  "where,  by  the  agreement,  the  vendor  is  to  do 
anything  to  the  goods  lor  the  purpose  of  putting  thcin  into 
that  state  in  which  the  purchaser  is  to  be  bound  to  accept  them, 
or,  as  it  is  sometimes  worded,  into  a  deliverable  state,  the  per- 
formance of  those  thit'Ti  shall  (in  the  absence  of  circum- 
stances indicating  a  contrary  intention),  be  taken  to  be  a  condi- 
tion precedent  to  the  vesting  of  the  property." 

The  second  is,  that  "where  anything  remains  to  be  done  to 
the  goods  for  tlie  purpose  of  ascertaining  the  price,  as  bv 
weighing,  measuring,  or  testing  the  goods — where  the  price  is 
to  depend  on  the  quantity  or  the  quality  of  the  goods — the  per- 
formance of  those  things,  also,  shall  be  a  condition  precedent  to 
the  transfer  of  the  property,  although  the  individual  goods  be 
ascertained,  and  they  are  iv.  a  state  in  which  they  ought  to  be 
accepted.  Whilst  the  price  remains  unascertained,  the  sale  is 
clearly  not  for  a  certain  sum  of  money,  and  therefore  does  not 
come  within  the  civilian's  definition  of  a  perfect  sale,  transfer- 
ring the  risk  and  gain  of  the  thing  sold."     Blackburn  on  Sales, 

154- 

To  these  Mr.   Benjamin    adds    ri    third    rule:      "Where  the 

buyer  is,  by  the  contract,  bound  to  do  anything  as  a  condition, 
either  precedent  or  concurrent,  on  which  the  passing  of  the 
property  depends,  the  property  will  not  pass  until  the  condition 
be  fulfilled,  even  though  the  goods  may  have  been  actually 
delivered  into  the  possession  of  the  buyer."  Benjamin  on 
Sales,  233. 

The  substance  of  these  three  rules  seems  to  be  tersely 
expressed  by  Mr.  Justice  Story,  thus:  "To  constitute  delivery 
so  that  the  property  will  pa.s,  nothing  must  remain  to  be  done 
concerning  it  6y  cither  party.''  Barrett  v.  C  ^dard,  3  Mason, 
III.  Or  thus,  it  is  said :  "The  pr-nciple  that  runs  through 
all  the  cases  is,  that  when  something  remains  to  be  done,  as 
between  buyer  and  seller,  or  for  the  purpose  of  ascertaining 
quantity  or  price,  there  is  no  delivery."  Rapelye  v.  Mackie, 
6  Cow.  253;  Fuller  v.  Bean,  34  X.  H.  300;  Warren  v.  Buck- 
minster,  34  Id.  3|.2;   2  Kent's  Com.  496;   Russell  v.  Carring- 


4S0       MODES  OF  OBTAIXING  TITLE  TO  PERSONAL  PUOPERTY. 

ton,  42  N.  Y.  iiS;   Davis  v.  Hill,  3  N.   II.   3S3 ;   Barnard  v. 
Poor,  21  Pick.  37S;   Hanson  v.  Meyer,  6  East,  614. 

Such  fact  will  generally   be    conclusive   that   there  was  no 
acceptance  so  as  to  bind  the  parties.     Browne  on  Frauds,  sec. 

317- 

Where  the  defendant  orally  purchasetl  of  the  plaintiff  a  quan- 
tity of  tares  by  sample,  and  left  them  on  the  plaintiff's  premises, 
saying  that  he  had  no  iinmcdiate  use  for  them,  and  requested 
that  they  might  remain  there  till  he  wanted  tc  sow  them,  which 
was  agreed  to — and  afterward  the  tares  were  measured  out  by 
the  agent  of  the  plaintiff,  and  set  apart  in  his  granary,  and 
ordered  to  be  dclivcre<l  to  the  defendant  when  he  called,  and 
the  defendant  afterward  refused  to  take  them,  for  which  the 
action  was  brought — the  Court  of  Queen's  Bench  nonsuited  the 
plaintiff,  holding  that  the  defendant  had  not  accepted  the  tares 
within  the  meaning  of  the  statute.  The  decision  seems  to  have 
gone  upon  the  principle  that  the  buyer  would  have  the  right, 
when  the  tares  were  tendered  him,  to  reject  them,  as  deficient 
in  quantity  or  as  not  agreeing  with  the  sample,  a  right  which 
he  could  not  be  presumed  to  have  waived.  Browne  on  Frauds, 
sec.  324. 

If  a  sale  is  not  complete,  if  anything  remains  to  be  done  con- 
cerning the  property  by  either  party,  a  present  right  of  prop- 
ertv  does  not  vest  in  the  buyer.  If  any  condition  precedent, 
such  as  the  ascertainment  of  the  quantity,  and  thereby  of  the 
gross  price,  is  not  performed  or  waived,  the  sale  is  not  com- 
plete ;  such  is  the  rule  of  the  common  law. 

This  rule  may  be  abrogated  by  express  agreement  of  the 
parties,  but  the  intention  to  change  it  so  that  the  title  shall  pass 
at  once  must  be  unequivocal  and  distinct ;  otherwise  the  con- 
struction required  by  the  principles  of  law  must  overrule  the 
possible  intention.     Russel  v.  Carrington,  43  N.  Y.  iiS. 

Measures  to  ascertain  quantity  or  price  may  be  agreed  on, 
but  tacitly  waived,  or  expressly  postponed  or  dispensed  with. 
Macomber  v.  Parker.  13  Pick.  183. 

But  the  rule  is  laid  down  in  Stone  v.  Peacock,  35  Me.  3S8, 
thus:  "Where  some  act  remains  to  be  done  in  relation  to  the 
property  which  is  the  subject  of  sale,  and  there  is  no  evidence 
to  show  any  intention  of  the  parties  to  make  an  absolute  and 
complete  sale,  the  performance  of  such  act  is  a  prerequisite  to 


i 


JPERTY. 

Barnard  v. 

ere  was  no 
Frauds,  sec. 

ntiff  a  quan- 
t's premises, 
d  requested 
them,  which 
ured  out  by 
ranary,  and 
called,  and 
r  which  the 
onsuitcd  the 
ted  the  tares 
eems  to  have 
re  the  right, 
as  deficient 
right  which 
e  on  Frauds, 

be  done  con- 
ight  of  prop- 
n  precedent, 
ereby  of  the 
is  not  com- 

iment  of  the 
tie  shall  pass 
wise  the  con- 
overrule  the 
f.  iiS. 
e  agreed  on, 
pensed  with. 

35  Me.  3S8, 

elation  to  the 

no  evidence 

absolute  and 

rerequisite  to 


PRESCOTT    V.   LOCKE. 


4SI 


a  consummation  of  the  contract,  and  until  it  is  performed  the 
property  docs  not  pass  to  the  vendee.  Ockington  v.  Richcv, 
41  X.  li.  275. 

In  Fuller  v.  Bean,  Mr.  Justice  Bell  said:  "There  has  been 
an  inclination,  in  some  cases,  to  regard  a  delivery  as  absolute 
when  no  condition  is  insisted  on,  and  to  consider  such  a  deliv- 
ery as  a  waiver  of  the  condition.  But  this,  we  think,  must 
depend  on  the  intent  of  the  parties,  to  be  ascertained  from  all 
their  language  and  conduct,  and  not  from  the  single  fact  of 
delivery."  "A  mere  assumption  of  ownership  or  control  by 
the  purchaser  will  not  be  sufficient  evidence  of  a  delivery, 
without  proof  of  consent  or  acquiescence."  And  see  Kelsea 
v.  Haines,  41  N.  II.  246. 

In  the  present  case,  the  spokes  were  to  be  taken  by  the 
defendants  from  the  mill,  and  they  were  deposited  in  the  place 
from  which  the  defendants  might  remove  them  on  the  comple- 
tion of  the  contract.  But  this  fact  alone  would  not  constitute 
a  delivery  in  law.  The  defendants  had  no  right  to  remove 
them  before  the  quantity  and  the  price  regulated  by  the  quantity 
was  ascertained. 

An  important  act,  the  act  of  counting  the  spokes,  remained, 
to  be  done,  in  which  both  parties  had  the  right  to  participate, 
unless  that  right  was  waived  by  the  defendants.  Stone  v. 
Peacock,  before  cited.  Is  there  any  evidence  competent  to  be 
submitted  to  a  jury,  tending  to  show  any  intention  cf  the 
parties  to  make  an  absolute  and  complete  sale,  dcli\ery,  and 
acceptance,  without  a  compliance  of  the  prerequisite  condition 
of  ascertaining  the  number  of  spokes.'^  Is  there  any  evidence  of 
any  waiver  by  the  defendants  of  their  right  to  participate  in  the 
important  act  of  counting  the  spokes?  It  appears  that  "the 
defendants  understood  they  were  to  count  each  lot  selected  by 
them,  before  they  took  them  from  the  mill.  "  Is  there  any  evi- 
dence that  the  plaintiff  had  not  the  same  understanding? 

It  appears  that  the  result  of  the  seller's  enumeration  was 
never  communicated  to  the  buyers  till  long  after  this  suit  was 
brought.  If  it  had  been  understood  by  the  parties  that  the 
buyers  were  not  to  participate  in  the  counting,  it  would  natu- 
rally be  required  that,  before  removal  to  the  defendants'  mill, 
a  statement  of  that  count  should  be  rendered  in  order  that  the 
J/ 


4S2       MOOKS  OI-  OIJTAIMNG  TITI.K  TO  PEHSONAI.  I'llUl'EHTV. 

buyers  might  vt-rify  it.  Tlie  plaintiff  could  not  expect  the 
defendants  to  pay  for  the  spokes  until  they  knew  how  many 
they  were  to  pay  for.  Suppose  the  plaintiff  had  charged  the 
defendants  with  10,000  spokes,  and  the  defendants,  at  the  Hme 
of  loading  them  for  removal,  had  discovered  that  the  actual 
number  was  hut  9,000.  would  they  not  have  the  right  to  reject 
the  plaintff's  count,  and  revoke  and  repudiate  the  whole  trade? 
If  so,  there  was  no  prior  irrevocable  acceptance,  to  satisfy  the 
terms  of  the  statute.  It  can  make  no  difference,  in  this  respect, 
that  the  defendants  might  have  a  remedy  against  the  plaintiff 
to  compel  him  to  make  good  a  deficiency,  ascertained  after 
final  acceptance.     That  is  an  independent  consideration. 

The  remark  of  Lord  Ellenhorough,  in  Hanson  v.  Meyer, 
that  "it  certainly  never  was  in  the  contemplation  of  the  seller 
to  waive  the  act  of  weighing  any  part  of  the  commodity  con- 
tracted for,"  is  equally  applicable  to  the  present  case. 

Suppose  the  defendants  had  removed  the  spokes  at  the  time 
they  selected  them  from  the  common  mass,  we  apprehend  the 
plaintiff  would  not  have  considered  himself  bound  to  accept  as 
true  the  ex  f arte  count  of  the  defendants,  made  in  his  absence, 
without  notice  to  him  and  an  opportunity  to  verify  the  count 
before  the  removal  of  the  property. 

The  fact  is,  the  counting  of  the  spokes  was  a  material  act,  in 
which  both  parties  were  equally  interested ;  and  an  ex  parte 
adjudication,  so  to  speak,  of  a  matter  so  material  as  quantity 
and  price,  must  almost  inevitably  have  led  to  the  very  results 
which  the  statute  of  frauds  was  intended  to  prevent. 

Suppose  a  creditor  of  the  defendants  had  attached  these 
spokes  while  lying  in  the  plaintiff's  mill-yard,  before  they 
were  counted  by  the  defendants,  it  would  not  seem  to  be  very 
strange  if  the  plaintiff  should  insist  that  the  sale  was  not  per- 
fected;  and,  again,  the  mischief  which  the  statute  tends  to 
avoid  would  have  been  precipitated.  These  illustrations  show 
the  necessity  of  a  rule  which  shall  require  the  provisions  of  the 
statute  to  be  applied,  except  in  a  strong  and  unequivocal  case 
of  manifest  waiver  of  their  requirements.  The  postponement 
of  the  day  of  payment,  originally  provided  for,  furnishes  no 
indication  of  the  renunciation  of  all  the  other  prerequisites  of  a 
valid  transfer  of  title. 


OI'ERTY. 

t  expect  the 

,v  liow  many 

chaifjed  the 

,  at  the  Hine 

at  tlie  actual 

ight  to  reject 

whole  trade  ? 

to  satisfy  the 

this  respect, 

the  plaintiff 

attained  after 

ration. 

)n  V.  Meyer, 
I  of  the  seller 
imodity  con- 
ase. 

s  at  the  time 
pprehend  the 
J  to  accept  as 
1  his  absence, 
ify  the  count 

aterial  act,  in 
I  an  ex  parte 
al  as  quantity 
;  very  results 
nt. 

ittached  these 
,  before  they 
;m  to  be  very 
;  was  not  per- 
atute  tends  to 
strations  show 
ovisions  of  the 
jquivocal  case 
postponement 
,  furnishes  no 
irequisites  of  a 


CUSHING    V.    nUEED. 


4S5 


It  would  be  quite  natural  that  the  defendants  should  count 
the  spokes  at  the  time  of  loadin<j  them,  as  was  in  fact  done  the 
previous  year.  Tliere  would  thus  be  an  opportunity  for  the 
defendants  to  verify  or  to  correct  the  plaintiff's  enumeration 
before  the  removal  of  the  property  to  the  defendants'  factory, 
where  the  spokes  would  be  without  tlie  plaintiff's  control  for 
any  purpose. 

The  act  of  charjrinf;  the  spokes  upon  the  plaintiff's  book  has 
no  sij^nificance.  In  the  well-known  custom  of  merchants,  such 
an  act  usuallv  precedes  the  removal  of  the  property. 

Upon  the  whole,  we  fail  to  discover  any  evidence  from  which 
a  jurv  would  be  at  liberty  to  (hid  a  waiver  of  the  defendants' 
rif^lit  to  insist  upon  a  participation  in  a  matter  so  material  as 
the  determination  of  the  quantity  of  spokes;  and  we  are  of  the 
opinion  that,  under  the  application  of  the  recoj^nized  principles 
of  law,  it  is  incumbent  upon  us  to  hold  that  the  saie  was  not 
perfected,  and  that  the  title  to  the  property  remained  in  the 
plaintiff  at  the  time  of  its  destruction. 

Under  the  provisions  of  the  case,  there  must  be  judgment  for 
the  defendants. 

Consult— Foster  V.  Ropes,  iii  Mass.  10;  Fletcher  v.  i>ivingston,  153 
Mass.  .-^SS;  Nofsinger  v.  Ring,  71  Mo.  147;  Pitts  R.  Co.  v.  Heck,  50 
Ind.  313,  19  \m.  Rep.  70;  Jennings  v.  Flanagan,  5  Dana,  217,  30  Am. 
Dec.  1S3;  Cleveland  v:  Williams,  29  Tex.  204,  94  Am.  Dec.  274; 
Sedgwick  v.  Cottingham,  54  la.  572. 


§  85.    Same— Grain  in  elevators. 

GUSHING  v.  BREED. 
[14  Allen,  376;  92  Am.  Dec.  777.] 

Supreme  Judicial  Court  of  Massachusetts,  186"/. 

Contract  to  recover  the  price  of  five  hundred  bushels  of  oats 
sold  and  delivered.  The  answer  admitted  the  sale  and  delivery 
of  one  hundred  and  five  bushels,  and  offered  judgment  for  the 
price  thereof,  and  denied  the  residue.  It  appeared  that  the 
plaintiffs  were  owners  of  a  cargo  of  oats,  which,  on  being 
weighed,  was  found  to  contain  six  thousand,  six  hundred  and 
ninety-five  bushels,   and   was   stored  in  the  Merchants'   Grain 


4^4       MODKS  OK  OHTAININO   TITLF-  TO  PI-KSOXAL  I'KOPKKTY. 

Ek-%ator  in  Boston,  which  hclonsed  to  persons  \vhn?c  business 
it  \NUs  to  receive,    elevate,    store,    \vei},'h,    and  deliver  grain. 
The  plaintiffs   thereafter   agreed   to   sell   to  tlie  defendants  five 
hundred  bushels  thereof,   and  delivered  to  them  the  following 
order  upon   the  proprietors   of    the    elevator,   dated   June    3,^, 
iS6i:      "IMcase  deliver   Breed   iS:  Co.,    or   order,  tivc  hundred 
bushels  of  black  oats  from  cargo,   per  schooner  Seven  Brothers, 
storage  commencing,    to  the  person  or  persons  in  whose  favor 
this  o"rder  is  drawn,  June  29,  1S64."     This  order  was  presented 
on  June    25,   1864,    and   accepted   in  the  usual  manner.     The 
order  was  entered  in  the  books,   and  on  the  same  day  one  hun- 
dred and  ilve  bushels  of  the  oats  were    delivered  to  defendants, 
and  before  July  5,    1S64.   the   whole   cargo   had  been  sold  and 
delivered  and  removed  from  the  elevator,  except  one  thousand, 
two   hundred  seventy-four  bushels,    which    included  the    three 
hundred  and  five  bushels  af;rced  to  be  sold  to  the  defendants. 
On  the  fifth  day  of  July  a   fh-c   occurred,    which  rendered  the 
oats  which  remained  in  the  elevator  nearly  worthless.     It  was 
the  general  usage  of  dealers  in  grain  in   Boston  to  place  large 
ciuantilicsof  grain  in  elevators,   where  the  same  remained  until 
sold,  by  orders  given  to   the  purchaser,    and   after   such  sale  it 
was  removed  from  the  elevator  or  kept  therein,  at  the  election 
of  the  purchaser.     After  tlie  acceptance   of  such  order  by  the 
proprietors    of   the    elevator,    the   grain    covered   thereby    was 
treated  by  them  as  the   property   of   the   purchaser ;   the  vendor 
had  no  further  control  over    it,    but    the    proprietors  held  the 
same  subject  to   the   order  of    the   purchaser,   received  orders 
from  him  in  the  same  manner  as  from  the  original  vendor,  or 
weighed   it  out   to   him   as   he    required,  they   guaranteeing  to 
deliver  out  the  full  number  of  bushels  weighed  into  the  elevator, 
charging  him   with    storage.     Different    cargoes  of    the   same 
quality,  belonging  to  different  owners,  were  sometimes  mingled 
in  the  bins.     Grain  so  bought  was  paid  for  without  regard  to 
whether  or  not   it  had  been  separated    and  removed   from  the 
elevator,  and  all  damage  to  grain  so  sold,  from  internal  causes 
occurring  after   the  delivery    of   the    order,    was  borne   by  the 
purchaser.     All   the   above  usages   were  known  to  the  defend- 
ants, but   they   objected   to   the    evidence   to  prove    the  same. 
The  judge  ruled  that  there  was  no  such  change  of  title  to  the 
grain,  except  as  to  the  one  hundred  and  five  bushels  actually 


ROnCKTY. 

Iin?c  business 
Iclivcr  grain, 
cfciulants  live 
tlic  follovvinjT 
ted  June  23, 
,  five  hundiecl 
ven  Brothers, 
n  whose  favor 
was  presented 
nanner.     The 

day  one  hun- 
to  defendants, 
been  sold  and 
one  thousand, 
ded  the  three 
;ie  defendants. 

rendered  the 
hless.  It  was 
to  place  large 
remained  until 
er  such  sale  it 
at  the  election 
h  order  by  the 
I  thereby  was 
cr ;  the  vendor 
ietors  held  the 
eccived  orders 
inal  vendor,  or 
[uarantccing  to 
to  the  elevator, 
3  of  the  same 
etimes  mingled 
thout  regard  to 
loved   from  the 

internal  causes 
i  borne  by  the 
1  to  the  defcnd- 
rove  the  same. 
;e  of  title  to  the 
bushels  actually 


CLJiUlNG    V.   nUKEll. 


U^5 


removed  by  the  defendants  from  the  elevator,  as  to  make  the 
defendants  liuole,  and  found  that  the  plaintiffs  were  only 
entitled  to  recover  the  price  agreed  for  the  one  hundred  ami 
five  bushels,  with  interest.      The  plaintiffs  alleged  exceptions. 

CiiAPMAX,  J.  The  use  of  elevators  for  the  storage  of  grain 
has  introduced  some  new  methods  of  ilealing,  but  tiie  rights  of 
parties  who  adopt  these  methods  must  be  determined  by  tiie 
principles  of  the  common  law.  The  proprietors  of  tlie  elevator 
are  the  agents  of  the  various  parties  for  whom  they  act.  When 
several  parties  have  stored  various  parcels  of  grain  in  the 
elevator,  and  it  is  put  into  one  mass,  according  to  a  usage  to 
which  they  must  be  deemed  to  have  assented,  they  are  tenants 
in  common  of  the  grain.  Each  is  entitled  to  such  a  propoition 
as  the  quantity  placed  there  by  him  bears  to  the  whole  mass. 
When  one  of  them  sells  a  certain  number  of  bushels,  it  is  a 
sale  of  property  owned  by  him  in  common.  It  is  not  necessarv 
to  take  it  away  in  order  to  complete  the  purchase.  If  the 
vendor  gives  an  order  on  the  agents  to  deliver  it  to  the  vendee, 
and  the  agents  accept  the  order,  and  agree  with  the  vendee  to 
store  the  property  for  him,  and  give  him  a  receipt  therefor, 
the  delivery  is  thereby  complete,  and  the  property  belongs  to 
the  vendee.  The  vendor  has  nothing  more  to  do  to  complete 
the  sale,  nor  has  he  any  further  dominion  over  the  propertv. 
The  agent  holds  it  as  the  property  of  the  vendee,  owned  by 
him  in  common  with  the  other  grain  in  the  elevator.  It  is  ele- 
mentary law  that  a  tenant  in  common  of  personal  propertv  in 
the  hands  of  an  agent  maj'  sell  the  whole  or  any  part  of  his 
interest  in  the  property  by  the  method  above  stated,  or  by  any 
other  method  equivalent  to  it.  Actual  separation  and  takin"- 
away  are  not  necessary  to  complete  the  sale.  As  to  the  prop- 
erty sold,  the  agent  acts  for  a  new  principal,  and  holds  his 
property  for  him.  The  law  is  the  same,  vVhether  the  proprie- 
tors are  numerous  or  the  vendor  and  vendee  are  owners  of  the 
whole.  If  the  vendee  resells  the  whole  or  a  part  of  what  he 
has  purchased,  his  vendee  may,  by  the  same  course  of  dealing, 
become  also  a  tenant  in  common  as  to  the  part  which  he  has 
bought. 

This  is  not  like  the  class  of  sales  where  the  vendor  retains  the 
possession,  because  there  is  something  further  for  him  to  do, 


Mi 


486      MODES  OP  OBTAINING  TITLE  TO  PEHSONAL  PROPERTY. 

such  as  measuring,  or  wcighinrr,  or  inarkiiis-  as  in  Scuddcr  v. 
Worcester,  ii  Cusli.  S73;  nor  like  the  case  of  Weld  v.  Cutler. 
2  Gray,  195,  where  the  whole  of  a  pile  of  coal  was  delivered  to 
the  vendee  in  order  that  he  might  make  the  separation.  But 
the  property  is  in  the  hands  of  an  agent;  and  the  same  person 
who  was  the  agent  of  the  vendor  to  keep,  becomes  the  agent  of 
the  vendee  to  keep ;  and  the  possession  of  the  agent  becomes 
the  possession  of  the  principal.  Hatch  v.  Bayley,  I3  Cush.  37, 
and  cases  cited.  The  tenancy  in  common  results  from  the 
method  of  storage  which  has  been  agreed  upon,  and  supersedes 
the  necessity  of  measuring,   weighing,  or  separating   the  part 

sold. 

No  delivery  is  necessary  to  a  tenant  in  common.  Beaumont 
V.  Crane,  14  Mass.  400. 

Upon  these  principles,  the  plaintiffs  .are  entitled  to  recover 
the  amount  due  them  for  the  property  thus  sold  and  delivered 
to  the  defendants.  The  damage  occasioned  to  this  property  by 
tlie  fire  must  be  borne  by  the    defendants,   as  owners  of  the 

property. 

Exceptions  sustained. 

CoN.,(LT— Dole  V.  Olmstcnd,  36  111.  150,85  Am.  Dec.  397;  41  111.  344. 
Sg  .\m.  Dec.  386;  Newhall  v.  Langdon,  39  Ohio  St.  95;  Keelerv.  Good- 
man, III  Mass.  491. 


§  86.    Payment  as  condition  precedent. 
PAUL  V.  REED. 


[52N.  II.  136.] 

Supreme  Judicial  Court  of  Nexv  Hampshire,  1872. 

One  Reed  sold  Moody  a  hog,  some  flour,  butter,  a  bedstead, 
some  sugar  and  salt,  at  an  agreed  price  of  thirty  dollars  and 
thirty  cents  cash  on  delivery.  The  hog  was  put  into  a  separate 
pen,  and  the  sugar  put  with  other  sugar  of  Moody's.  Just  as 
Moody  was  to  hand  Reed  the  cash,  the  sheriff,  standing  by, 
served  a  process  on  Moody,  as  trustee  (garnishee),  in  an  action 
of  one  Azor  Paul  against  Mr.  Reed.  Whereupon  Moody 
refused  to  pay  Keed  the  cash,  and  Keed  reclaimed  his  property; 


ROPER  TY. 

in  SciifUlcr  v. 
'dd  V.  Cutler, 
IS  delivered  to 
)aration.  But 
le  some  person 
,'s  the  agent  of 
;igcnt  becomes 
,  13  Cush.  37, 
suits  from  the 
md  superscdfs 
ating  the  part 

n.     Beaumont 

tied  to  recover 
\  and  delivered 
lis  property  by 
owners  of   the 

ions  sustained. 

397;  41  111.  344, 
;  Keelerv.  Good- 


ii-e,  1872. 

ter,  a  bedstead, 
rty  dollars  and 
t  into  a  separate 
lody's.  Just  as 
f,  standing  by, 
;e),  in  an  action 
jreupon  Moody 
ed  his  property; 


PALL    V.     RKED. 


1S7 


the  cotn't,  however,  held  the  trustee  chargeable  with  the  thirty 
dollars  and  thirty  cents,  Reed  duly  excepting. 

Bem.ows,  C.  J. — Unless  the  principal  defendant  had  another 
hog  and  other  provisions  or  fuel,  so  that  the  value  of  his  pro- 
visions and  fuel  exceeded  twenty  dollars,  all  the  articles  sold  to 
the  trustee  were  exempt  from  attachment.  As  there  is  no 
ij)roof  that  he  had  another  hog,  or  more  provisions,  or  fuel,  the 
court  can  not  fuid  that  he  had  such ;  and,  therefore,  unless  the 
title  in  these  goods  had  vested  in  the  trustee  so  that  he  became 
indebted  for  them,  the  trustee  must  be  discharged. 

The  ([uestion  then  is,  whether  the  goods  were  delivered  so 
as  to  vest  the  title  in  the  trustee. 

The  proof  tends  to  show  that  the  sale  was  for  cash,  and  not 
on  credit;  so  the  trustee  testifies,  and  this  is  just  what  would 
have  been  intended  had  no  time  of  payment  been  stipulated. 
2  Kent's  Com.  496,  497;  .Story  on  Con.,  sec.  796;  Noy's 
Maxims,  87;  Ins.  Co.  v.  De  Wolf,  2  Cow.  105.  The  case, 
then,  stands  before  us  as  a  contract  of  sale  for  cash  on  delivery ; 
in  such  case  the  delivery  and  payment  are  to  be  concurrent 
acts;  and,  therefore,  if  the  goods  arc  put  into  the  possession  of 
the  buyer  in  the  expectation  that  he  will  immediately  pay  the 
price,  and  he  does  not  do  it,  the  seller  is  at  liberty  to  regard 
the  delivery  as  conditional,  and  may  at  once  reclaim  the  goods. 
In  such  a  case  the  contract  of  sale  is  not  consummated,  and  the 
title  does  not  vest  in  the  buyer.  The  seller  may,  to  be  sure, 
waive  the  payment  of  the  price,  and  agree  to  postpone  it  to  a 
future  day,  and  proceed  to  complete  the  delivery;  in  which 
case  it  would  be  absolute,  and  the  title  would  vest  in  the  buyer. 
But  in  order  to  have  this  effect,  it  must  appear  that  the  goods 
were  put  into  the  buyer's  possession  with  the  intention  of  vest- 
ing the  title  in  him. 

If,  however,  the  delivery  and  payment  "were  to  be  simulta- 
neous, and  the  goods  were  delivered  in  the  expectation  that  the 
price  would  be  immediately  paid,  the  refusal  to  make  payment 
would  be  such  a  failure  on  the  part  of  the  buyer  to  perform 
the  contract  as  to  entitle  the  seller  to  put  an  end  to  it  and 
reclaim  the  goods. 

This  is  not  only  eminently  just,  but  it  is  in  accordance  with 
the  great  current  of  authorities,  which  treat  the  delivery,  under 


.jSS     MonF.s  ni-  oiiiaininm;  irri.K  to  pkusonal  imioi'kk  iy. 

siuh  civcnmstiitucs,  as  conditional  npon  the  immediate  payment 
of  tlR-  i)iicc.     2   Kent's  Com.    197;    Cliilty  on  Con.    [y  Am. 

Kd.]    V-^O'  ""'*'    '    ''"''  '^•■"*^'^=   '"^^''''y  °"  ^°""*   **''"'^*'"  ''''^^''  '"^"^ 
Palmer  v.  liand,  13  Johns.  43  1  ;  Marston  v.  Baldwin,  1,   Mass. 
605;   Liven  V.  Smith,  i    Demo,  573.  and  cases  cited.      So  the 
doctrine  was  Inlly  reco-ni/ed  in  Hnssell  v.  Minoi,  23   Wend. 
r):;y,  where,  on  the  sale  of  paper,  it  was  a<,nced  that  the  buyer 
should  give  his  notes  for  it  on  delivery,  an.l  the  delivery  was  in 
several  parcels.     On  delivery  of  the  lirst,  the  seller  asl-  d  for  a 
note;   hut  the  Iniyer  answered  that  he  would  <,nve  his  note  for 
the  whole  when  the  remainder  was  delivered,  and  the  i)arcel 
now   delivered   could  remain   until   then.     When  the  rest  was 
delivered  the  defendant  refused  to  give  his  note;   and  the  court 
held  that  the  delivery  of  all  the  goods  was  conditional,  and  that 
the  seller  mi-;ht  maintain  replevin  for  all  the  Roods.      The  <>;.  n- 
c-ral  doctrine  is  fully  recognized  in  this  state  in  Luey  v.  IJunily, 
9  N.  II.  29S,  and  more  especially  in   Ferguson     .  Clifford,  ,^7 
Id.   86.  where  it  is  laid  down   that  if  the  delivery  takes  place 
when   payment  is  expected    simultaneously  therewith,   it  is    in 
law  made  upon   the    comlition   precedent  that   the  price  shall 
forthwith    be   paid.      If  this   condition    be  not  performed,   the 
deliverv  is  inoperative  to  pass  the  title  to  the  pro.perty,  and   it 
may  be  instantly  reclaimed  by  the  vendor. 

The  question  then  is,  whether  the  delivery  here  was  absolute, 
intending  to  pass  the  title  to  the  vendee  and  trust    him  for  the 
price,  or  whether  it  was  made  with  the  expectation    that  the 
cash  would  be  paid  immediately  on  the  delivery.     This   is  a 
question  of  fact,  but  it  is  submitted   to  the  court  for  decision. 
Ordinarily  it   should   be  passed   upon  at   the    trial  term;   out 
where  the  question  is  a  mixed  one  of  law  and  fact,  as  it  is  here, 
it  may  not  be  irregular,  if  the  judge  thinks  it  best,  to  reserve 
the  entire  question  for  the  whole  court.     Assuming  that  the 
questions  both  of  law  and  fact  are  reserved,  we  find  that  the 
goods  were  sold  for  cash,  and  of  course  that  the  delivery  of  the 
goods  and  the  payment  of  the  price  were  to  be  simultaneous ; 
and,    accordingly,    when  a  part   had  been    delivered   and   the 
seller  was  figuring  up  the  amount,  and  the  buyer  had  taken  out 
his  money  to  pay  the  price,  the  act  was  arrested  by  the  service 

of  this  process. 

The  evidence  relied  upon  to  prove  the  delivery  to  be  absolute 
and  intended  to  pass  the  title  at  all  events  is  simply  and  solely 


I'UOl'Kll  lY. 

icdiato  pnyniiiit 
1  Ctm.  [y  Am. 
sees.  796,  S04 ; 
Ulwin,  r,  Mass. 
;  cited.  So  the 
iiioi,  23  W'eml. 
tl  tliat  the  buyer 
;  delivery  was  in 
eller  asl  i\  tor  a 
;ive  his  note  l'i>r 
,  and  the  jiarcel 
len  the  rest  uas 
e  ;  and  the  court 
Jitionai,  and  tltat 
cods.     The  gt  n- 

Luey  V.  IJundy, 
n  .  Clifford,  ,:^7 
very  takes  place 
lercvvith,  it  is  in 
t  the  price  shall 
t  performed,   the 

prqperty,  and   it 

ere  was  absolute, 
trust  him  for  the 
lectation  that  the 
i%-ery.  This  is  a 
Durt  for  decision. 
e    trial  term ;   but 

fact,  as  it  is  here, 
t  best,  to  reserve 
assuming  that  the 

we  find  that  the 
the  delivery  of  the 
be  simultaneous ; 
delivered  and  the 
.lyer  had  taken  out 
sted  by  the  service 

very  to  be  absolute 
;  simply  and  solely 


PAUL  V.  REED. 


4S9 


tlic  changing  of  the  hog  into  another  pen  and  mising  the 
sugar  with  other  sugar  of  the  buyer.  Witiiout  this  mixing  of 
the  sugar,  the  case  would  be  just  the  ordinary  one  of  a  delivery 
of  the  goods  with  the  expectation  that  the  buyer  would  at  once 
])av  the  price  ;  and  we  think  that  circumstance  is  not  enough 
to  siiow  a  purpose  to  make  the  delivery  al)solute,  but  rather  a 
confident  expectation  that  the  buyer  would  do  as  he  had  agreed 
and  pay  the  price  at  once.  The  case  of  Henderson  v.  Lauck, 
31  l*a.  St.  ,^59.  was  very  much  like  this.  There  was  a  sale  of 
corn,  to  be  paid  for  on  the  delivery  of  the  last  load  ;  and  as  the 
loads  were  delivered  the  corn  was  placed  in  a  heap  with  other 
corn  of  the  buyer,  in  the  i>resence  of  both  parties.  On  the 
delivery  of  the  last  lot  the  buyer  failed  to  pay,  and  the  seller 
gave  notice  that  he  claimetl  the  corn,  and  brought  replevin, 
which  was  held  to  lie — the  court  regarding  the  delivery  as 
conditional,  and  the  plaintiff  in  no  fault  for  the  intermingling 
of  the  corn.  It  is  very  clear  that  the  intermingling  of  the  sugar 
does  not,  as  matter  of  law,  make  the  delivery  absolute;  and 
I  think,  as  matter  of  fact,  it  is  not  sulficient  to  prove  an  inten- 
tion to  pass  the  title  absolutely.  WMien  the  buyer  declined  to 
pay  the  price,  the  seller  at  once  reclaimed  the  goods,  and  so 
notified  the  buyer,  who  did  not  object  to  giving  up  the  sale  if 
he  could  safely  do  so. 

In  respect  to  the  question  now  before  us,  it  is  not  material 
for  what  reason  the  buyer  declined  to  pay  for  the  goods, 
although  the  service  of  the  trustee  process  might  shield  him 
from  damages  in  a  suit  by  the  seller  for  not  taking  and  paying 
for  the  goods.  For  the  purposes  of  this  question,  it  is  enough 
that  the  buyer  did  not  pay  the  price,  and  thus  gave  the  seller  a 
right  to  reclaim  the  goods,  which  he  did  at  once.  The  goods 
themselves  were  exempt  from  attachment;  and  the  fact  that  the 
trustee  process  was  designed  to  intercept  the  price  of  those 
goods  could  not  affect  his  right  to  redaim  them  when  the 
buyer  declined  to  pay  the  price. 

The  exception  must  therefore  be  sustained,  and  the  trustee 
discharged. 

Consult— Fishbach  v.  Van  Dusen,  33  Minn,  ni;  Prentiss  Tool  Co. 
V.  Schirmer,  136  N.  Y.  305,  32  Am.  St.  Rep.  737;  Crompton  v.  Beach, 
62  Conn.  25;  Palmer  v.  Hand,  13  Johns.  474;  Adams  v.  O'Connor,  100 
Mass.  515;  Ames  v.  Moir,  130  111.  582;  Reybold  v.  Vorhies,  30  Pa. 
St.  u6. 


4yO      MOPES  OF  OnTA.NlNO  TITI.K  TO  PKUSONAL  l-UU.'ICIMV. 


§  87.    Delivery  to  carrier. 

llAILliY  V.  HUDSON  RIVER  R.  CO. 

[49  N.  Y.  70-] 
Court  of  Appeals  of  Nc-M  York,  l8j2. 

Action  by  Bailey  &  Company  aRainst  defendant  for  the  con- 
version of  certain  dry  goods  delivered  to  defendant  and  con- 
sif^ned  to  plaintiffs. 

Cmucii,  C.  J.— It  is  undispnted  that  Aldcn.  Frink  .S:  Wcs- 
ton  delivered  the  goods    in   cpiestion   to    the   ..ofendant,   to   be 
transported  by  them  to  the  plaintiffs;   that  they  were  consigned 
to  the  plaintiffs,  and   the   packages  properly  marked  w.th  the 
name  of  the  plaintiffs'  lirm,   and   the   defendant  gave  a  receipt 
for  the  same,  agreeing  to  deliver  the  goods  safely  to  the  plani- 
tiffs  at  the  citv  of  New  York.     It  is  also   undisputed   that   the 
plaintiffs  had'madc  a  specific  advance   upon   a   portion   ot  the 
goods,  and  the   remainder   were    shipped    in   pursuance   of   an 
a.Mcement  between  the  plaintiffs  and  Alden,  Frink  .S:  Weston, 
to  pay  for  monev  borrowe.l  by  the  latter  of  the  former  a  few 
days  previous,  and  that  invoices  of  all   the   goods,    statmg  the 
consignment  and   shipment  by   the  defendant's  railroad,    had 
l,cen  forwarded  to  the  plaintiffs   by   mail.     This  was   snbstan- 
tially  the  condition  of   things   on   the   seventeenth   of  October, 
when  one  of  the  members  of  the  firm  of  Alden,  Frink  Si  Wes- 
ton,  for  his  individual  bene     ,    but    in    the    name   of  his  firm, 
ch;   igcd  the  destination  of  the  goods,  and  the  defendant  deliv- 
ered Uiem  in  pursuance  of  such  changed  destination  to  another 
person.     The  question  is.  whether  the   title   had  vested   in  the 
plaintiffs.     I  think  it  had.     It  is  clear  that  the  consignors  deliv- 
red  the  goods  to  the  carrier  for    tlic   plnintiffs   in   compliance 
with  their  contract  to  do  so.     The  )>rircl  contract  was  thereby 
executed,  and  the  title  vested  in  r.h..  i.laintiffs.     The  plaintiffs 
occupied  the  legal   position   of  vendees   after  having  paid  the 
purchase-money  and  received  the  delivery  of  the  goods.     But 
it  is  unnecessary,  in  order  to  uphold  this  judgment,  to  maintain 
that  the   plaintiffs  occupied   strictly  the   relation    of   vendees. 


Ol'IiKTY. 


OAILEY  V.  HUDSON   KlVI.It  l(.  CO. 


.\',l 


:o. 


t  for  the  con- 
mt   and    con- 


^■ink  .t  Wes- 
:ndant,  to  be 
ere  cotisif:;ned 
rked  with  the 
^ave  a  receipt 
/  to  tiie  plaiii- 
uted  that  tlie 
)ortion  of  the 
suancc  of  an 
nk  <S:  Weston, 
former  a  few 
Is,    stating  the 

raihoad,    had 

was  snbstan- 
h  of  October, 
Frink  Si  Wes- 
c  of  his  firm, 
-fendant  deliv- 
tion  to  another 

vested  in  the 
nsignors  dcliv- 
in  compliance 
ct  was  thereby 

The  plaintiffs 
aving  paid  the 
le  goods.  Bnt 
;nt,  to  maintain 
)n    of   vendees. 


The  legal  rights  of  a  vendee  attach  when  goods  are  shipped  to 
n  commission  merchant,  wlio  has  made  advances  npon  them  in 
pursnance  of  an  agreement  between  the  parties.  .Snch  iii\ 
agreement  may  lie  cither  inferred  from  the  circimistances  or 
shown  by  express  contract.  Hollirook  v.  Wight,  i.[  Wend. 
i6y,  :^5  Am.  Dec.  607;  Ilaille  v.  Smith,  1  Hos.  \.  I'nl.  ^lij. 
In  the  latter  case,  F.yre,  J.,  said:  "From  the  moment  the 
goods  were  set  apart  for  this  particular  purpose,  why  should 
we  not  hold  the  property  in  them  to  have  changed,  it  being  in 
perfect  conformity  to  tiie  agreement  and  such  an  execution 
thereof  as  the  justice  of  the  case  requires."  The  same  princi- 
ple   has    been   repeatedly   adopted,     (irosvenor  v.    Phillips,  2 

Hill,  147. 

It  must  appear  that  the  delivery  was  made  with  intent  to 
transfer  the  property.  Until  this  is  done  the  parol  agreeinent 
is  executory,  the  title  remains  in  the  consignor,  and  he  has  the 
pciwer  to  transfer  the  property  to  whomsoever  he  pleases,  and 
render  himself  liable  for  the  nonperformance  of  the  contract. 
It  is  urged  by  the  counsel  for  the  defendant  that  no  bill  of 
lading  was  forwarded  or  delivered  to  the  plaintiffs,  and  that 
imtil  this  was  done  the  title  remained  in  the  consignors.  This 
is  undoubtedly  true  in  many  cases;  but  it  is  mainly  important 
in  characteri/,:ng  the  act  of  the  shipper,  and  showing  with  what 
purpose  and  intent  the  goods  were  delivered  to  the  carrier.     If 

A.  has  property,  npon  which  he  has  received   an  advance  from 

B.  upon  an  agreement  that  he  will  ship  it  to  B.  to  pay  the 
advance  or  to  pay  any  indebtedness,  he  may  or  may  not  comply 
with  his  contract.  He  may  ship  it  to  C.  or  he  may  ship  it  to 
B.  upon  conditions.  As  owner  he  can  dispose  of  it  as  he 
pleases.  But  if  he  actually  ships  it  to  B.  in  pursuance  of  his 
contract,  the  title  vests  in  B.  upon  the  shipment.  The  highest 
evidence  that  he  has  done  so  is  the  consignment  and  uncondi- 
tional delivery  to  B.  of  the  bill  of  lading.  If  the  consignor 
procures  an  advance  upon  the  bill  of  lading  from  a  third  per- 
son, or  delivers  or  indorses  the  bill  of  lading  to  a  third  person 
for  a  consideration,  it  furnishes  equally  satisfactory  evidence 
that  the  property  was  not  delivered  to  the  consignee,  for  the 
simple  reason  that  it  was  delivered  to  some  one  else.  But  I 
apprehend  that  if  a  consignor  who  made  sucii  an  agreement 
retained  in  his  own  possession  a  duplicate  of  the  bill  of  lading? 


49-:        MODES  OF   OUTAININO  TITLE  TO  rERSOXAL   PIlOl'EllTV. 

anil  notified  the  consignee  by   letter  that  he   had    shipped   the 
property  for  him  in  pursuance   of    the    agreement,    or   in    any 
other  manner  the  intention  thus  to  ship  it  was  evinced,  llie  title 
would  pa£S  as  effectually,  as  between  them,    as   if   he   had  for- 
warded the  bill  of  lading.     The  question  whether  a  subsequent 
indorsee  of  the  bill  of  lading  for  a  valuable  considcratio.i  could 
acquire  nny  rights  against  the  consignee    is  not    involved.      As 
against  tiie  consignor  the  delivery  of  the  property  to  the  carrier 
with  intent  to  comply  with  his  contract,    vests   the   title  hi  the 
consignee.     It  is  largely  a  question   of   intention.      In  Mitchell 
V.  Ede,  II  Adol.  cS:   El".   903,   cited  by   the  defendants,    Lord 
Denmansaid:     "The  intention  of   Mackenzie   to   transfer  the 
property  to  the  plaintiff  is   unquestionable,    and    we  think  that 
under  tlie  circumstances  he  has  carried  that  intention  into  effect." 
And  in  Bank  of  Rochester  v.  Jones,  4  N.  Y.  501,  55  Am.  Dec. 
290,  this  court  said:      "When  the  bill  of   lading   has  not  been 
delivered  to  the  consignee,  and  there  is  no  other  evidence  of  an 
intention  on  the  part  of  the   consignor   to   consign   the   specific 
property  to  him,  no  lien  will  attach."     In  that  case  the  bill  of 
lading  was  not  only  not  sent  to  the   consignee,   but   was   trans- 
ferred to  the  plaintiffs  and  money  borrowed  upon  it,  and  there 
was  no  evidence  of  an  intention    to    consign    the    flour   to   the 
defendant  except  upon  the  condition  of  paying  the  money  so 
borrowed.     It  should  be  observed  also  that  in  that  case  there 
was  no  agree -ncnt  to  consign  the  property  to  the  defendant  as 
security,  or  in  i.ayment  of  the  indebtedness  due   him   from  the 
consignor.     Such    an    agreement,    either  express    or    implied, 
is  important,   although  not  conclusive,    in   showing   the    intent 
with  which  the  act  was  done.     In  this  case  there  was  no  other 
bill  of  lading  than  the  receipt  produced   in   evidence,    and  no 
duplicate  was  taken;     but   the   intention   of   Alden,    Frink   cS: 
Weston  to  transfer  this  specific  property  to  the  plaintiffs,  to  be 
applied  upon   then-   indebtedness,  conclusively  appears  by  the 
undisputed   evidence:      i.   By  the  agreement  the  day  prior  to 
the  shipment.     2.  B>  forwarding  invoices  of  the   shipment  to 
the    plaintiffs.     3.   Bv   making  the    shipment   unconditionally. 
,.     By  retaining  the  receipt  given  by  the  defendant,  and  neither 
n::  king  nor  attempting  to  make  any  vise  of  it. 

These  acts  were  so  unequivocal  of  an  intention   to  transfer 
the  property  to  the  plaintiffs  that  there  remains  no  room  for 


mm 


BAII.EV  V.    HUDSON   lUVKK   K.    CO. 


493 


,  PUOl'KRTV. 

ad  shipped  ilie 
ent,  or  in  any 
I'inced.  llie  title 

if  lie  had  inr- 
er  a  subsequent 
^ideratio.i  could 

involved.  As 
ty  to  the  carrier 
the  title  in  the 
,n.  In  Mitchell 
ifendants,    Lord 

to  transfer  the 
d  we  think  that 
tion  into  effect." 
oi,  55  Am.  Dec. 
iig  has  not  been 
;r  evidence  of  an 
sign  the  specific 
;  case  the  bill  of 

but   was   trans- 
pon  it,  and  there 
the    flour   to   the 
i<r  the  money  so 
1  that  case  there 
the  defendant  as 
le   him   from  the 
ress   or    implied, 
owing   the    intent 
ere  was  no  other 
evidence,    and  no 
iVlden,    Frink   cS: 
le  plaintiffs,  to  be 
y  appears  by  the 

the  day  prior  to 
E  the  shipment  to 
:  unconditionally, 
iidant,  and  neither 

ention   to  transfer 
lains  no  room  for 


doubt.  The  moment  these  acts  were  done,  the  title  vested  in 
the  plaintiffs,  and  the  consignors  were  powerless  to  interfere 
with  the  property. 

The  recent  case  of  Cayuga   County  National    Hank  v.  Dan- 
iels, 47  N.  Y.  631,   was  decided   against   tl-o   consignees  upon 
the  distinction  above  referred  to.     It  was  held  in  that  case  that 
the  consignors  did  not  deliver  the   property  to  the  carrier  with 
the  intention  to  vest  the  title   in  the   defendants,   except  upon 
condition  of  paving  a  draft   discounted   by    the   plaintiffs,  and 
that  the  hill  of  lading  was  delivered  upon   that  condition,   and 
that  on  the  defendants'  refusal   to   comply  with  the  condition, 
they  acquired  no  right  or  title  to  the  property,  and  that  the  case 
therefore  came  within  the  principle   of    Bank   of  Rochester  v. 
Jones,  supra.     Here  the  intention  to  vest  the  title  is  clear  and 
plain.     It  is  urged   that   the   words    "on   our   account"   in  the 
invoices  evinced  an  intention  not  to  vest  the   title   in   the  plain- 
tiffs.    They  can  have  no  such  effect  in  this  case,  even  if,  stand- 
ing alone  and  unexplained,  they  might  have.     A  bill  of  lading 
for  which,  as  between  the  parties,   the  invoices  were   a  substi- 
tute, can  always  be  explained  by  parol.     It  may  be  shown  by 
parol  to  have  been  intended  as  evidence  of  an  absolute  sale,   a 
trust,  a  mortgage,  a  pledge,  a  lien,   or  a  mere  agency.      2  Ilill, 
151,  4  N.  Y.  501,  and  cases  cited.      The  actual  agreement  and 
transaction  will  prevail,  and  it  was  proved  by  two  of  the  mem- 
bers of  the  fnm,   and   uncontradicted,    that   the   goods   were  in 
fact  shipped  in   piu'suance   of   the   agreement.     Besides,   tliese 
words  are  not    necessarily     inconsistent  with    the    agreement. 
The  goods  were  not  purchased  absolutely  by  the  plaintiffs,  at 
a  specified  price,  but  were  to  be  sold    and    the   avails   applied. 
The  relation  of  the  plaintiffs  was  more   nearly  that  of  trustee, 
having  the  title  and  bountl  to  dispose  of  the  property  and  apply 
the  proceeds  in  a  paiticular    manner,   and  the  consignors  were 
the  cestuis  que  trust,  having  the  legal  right  to  enforce  the  terms 
of  the  agreement  for  their  benefit.      In  this  sense  the  property 
was  shipped  on  th'.'ir  account,  and   the  agreement  is  consistent 
with  the  meaning  of  those    words.      The  statute  of  frauds  has 
no  application :      i.   There  was  no   sale.      2.   If  there   was  the 
consideration  was  paid.      3.   The  property  was  specified  when 
the  agreement  was  made  as  being  that  which  had  been  and  was 
then  being  shipped,   and    the   plaintiffs   agreed   to   accept   that 


4y4        Moniv-S  OK   OBTAINING  TITI.K  TO  I'KRSONAL  PROPERTY. 

p;irticul:ir  piopeity,  and  the  subsequent  delivery  to  the  carrier 
agreed  upon  was  in  legal  effect  a  delivery  to  the  plaintiffs. 
cioss  V.  O'Donnell,  44  N.  Y.  661,  4  Am.  Rep.  721  ;  Stafford 
V.  Webb,  Lalor  Snpp.  217. 

Tiie  defendant  is  liable  for  a  conversion  of  the  property.  It 
had  receipted  the  property  and  agreed  to  transport  safoly  and 
deliver  it  to  the  plaintiffs.  Instead  of  complying  with  its  con- 
tract, it  delivered  the  property  to  another  person  by  the  direc- 
tion of  one  who  had  no  more  legal  authority  over  the  property 
than  a  stranger,  without  the  return  even  of  its  receipt.  The 
plaintiffs  had  vested  rights  which  the  defendant  was  bound  to 
respect,  and  with  a  knowledge  of  which  it  was  legally  charge- 
able. Wiiletts  v.  Sun  Mut.  Ins.  Co.,  45  N.  Y.  49;  Hawkins 
V.  Hoffman,  6  Hill,  5S6;  Ilolbrook  v.  Wight,  34  Wend.  169; 
Story,  liailm.  414;  Boyce  v.  Brockway,  31  N.  Y.  490.  It  was 
its  duty  to  deliver  the  property  to  the  real  owner.  McEntee 
V.  New  Jersey  Steamboat  Co.,  45  N.  Y.  34. 

Judgment  affirmed,  with  costs. 

All  concur. 

Judgment  affirmed. 

Consult— Kriider  V.  Ellison,  47  N.  Y.  36,  7  Am.  Rep.  402;  Ma- 
gruder  V.  Gage,  33  Md- 344.  3  Am.  Rep.  177;  Wing  v.  Clark,  24  Me. 
3to;  Comstock  V.  Affoelter,  .so  Mo.  411 ;  Devine  v.  Edwards,  loi  111. 
138;  Merchants'  Nationiil  Bank  v.  Bangs,  102  Mtiss.  205;  Dows  v.  Na- 
tiot^al  Bank,  91  U.  S.  6iS;  Lumber  Co.  v.  Hardware  Co.,  53  Ark.  198; 
Bank  v.  Jones,  4  N.  Y.  497. 


§  88.    GoodB  sent  C.  O.  D. 

COMMONWEALTH  v.  FLEMING. 

[130  Pa.  St.  138.] 
Supreme  Court  of  Pennsylvania,  i88g. 

The  plaintiff  in  error,  Joseph  Fleming,  being  a  wholesale 
liquor  dealer,  licensed  and  carrying  on  business  in  Allegheny 
county,  sold  and  sent  from  his  place  of  business,  C.  O.  D.,  to 
Mercer  county,  where  he  had  no  license,  liquors  ordered  by 
persons  in  the  latter  county.     For  this  he  was,  at  the  court  of 


•I'ERTY. 

the  carrier 
e  plaintiffs, 
i;   Stafford 

operty.  It 
safoly  and 
vitli  its  con- 
f  the  direc- 
10  property 
ceipt.  The 
IS  bound  to 
ally  charge- 
);  Hawkins 
W^end.  169; 
[.90.  It  was 
McEntee 


:nt  affirmed. 

ep.  402 ;  Ma- 
Clark,  24  Me. 
vards,  loi  111. 
Dows  V.  Na- 
,53  Ark.  198; 


a  wholesale 
in  Allegheny 
C.  O.  D.,  to 
i  ordered  by 

the  court  of 


COMMONWEALTH  V.   FLEMING. 


495 


quarter  sessions  of  Mercer  county,  indicted,  tried,  convicted, 
and  sentenced  for  selling  liquor  therein  without  a  license,  lie 
now  brings  error. 

Green,  J. — In  the  case  of  Garbracht  v.  Com.,  96  Pa.  St. 
449,  which  was  an  indictment  for  selling  liquor  without  license, 
we  held  tliat  "the  place  of  sale  is  the  point  at  which  goods 
ordered  or  purchased  are  set  apart  and  delivered  to  the  pur- 
chaser, or  to  a  common  carrier,  who,  for  the  purposes  of  de- 
livery, represents  him."  In  that  case  the  order  for  the  liquor 
was  solicited  and  obtained  by  the  defendant  in  the  countv  of 
Mercer,  but  was  sent  to  his  principal,  who  was  a  liquor  dealer 
in  the  county  of  Erie.  The  order  was  executed  by  the  prin- 
cipal, who,  in  the  county  of  Erie,  at  his  place  of  business, 
separated  or  set  apart  from  his  general  stock  the  liquor  ordered, 
and  delivered  it  to  a  common  carrier  to  be  forwarded  to  its 
destination  in  Mercer  county.  We  decided  that  this  was  no 
violation  of  the  law  prohibiting  sales  without  license,  although 
neither  the  defendant,  who  was  a  traveling  agent,  nor  his 
principal  held  any  license  for  the  sale  of  liquor  in  Mercer 
county.  This  decision  was  not  changed  in  the  least  upon  a 
subsequent  trial  of  the  same  defendant  on  a  different  state  of 
facts,  as  reported  in  i  Penny.  471.  In  the  case  now  under 
consideration  the  liquor  was  sold  upon  orders  sent  by  mail  by 
the  purchasers,  living  in  Mercer  county,  to  the  defendant,  who 
is  a  wholesale  liquor  dealer  in  Allegheny  county.  The  goods 
were  set  apart  at  the  defendant's  place  of  business  in  Allegheny 
county,  and  were  there  delivered  to  a  common  carrier,  con- 
signed to  the  purchaser  at  his  address  in  Mercer  county,  and  by 
the  carrier  transported  to  Mercer  county,  and  there  delivered 
to  the  purchaser,  who  paid  the  expense  of  transportation. 
Upon  these  facts  alone,  the  decision  of  this  court  in  the  case  of 
Garbracht,  supra,  is  directly  and  distinctly  ajDplicable,  and 
requires  us  to  reverse  the  judgment  of  the  court  below,  unless 
there  are  other  facts  in  the  case  which  distinguish  it  from  that 
of  Garbracht. 

It  is  claimed,  and  it  was  so  held  by  the  court  below,  that, 
because  the  goods  were  marked  "C.  O.  D.,"  the  sale  was  not 
complete  until  the  delivery  was  made  ;  and  as  that  took  pl.ace 
in  Mercer  county,  where  the  defendant's  license  was  inopera- 


«■ 


496 


MODES  OF  OBTAINMNG  TITLE  TO  PF.RSONAI.  I'UOIM-UTY, 


tivf    lie   was   without   license  as  to  such    sales,    and    became 
subject  to  the  penalty  of  the   criminal  law.     The  argument  by 
which  this  conclusion  was  reache.l   was   simply   that   the   pay- 
ment of  the  price  was  a  condition  precedent  to  the   dci.very. 
,„k1  hence  there  was  no  delivery   until   payment,  and   no  title 
passed  until  delivery.     The  legal   and   criminal    inference  was, 
the    sale  was   made   in    Mercer,  and   not    in  Allegheny.     Ih.s 
reasoning    i<mores  certain    facts   which   require    consideration. 
The  orders  were  sent  by  the  purchasers,  in  Mercer,  by  mail  to 
the    seller,    in   Allegheny,   and    in    the    orders    the    purchasers 
rcHiuestcd   the   defendant   to   send    the    goods  C.   O.  D.     The 
well  known  meaning  of  such  an  order  is  that  the  price  of  the 
goods  is  to  be  collected  by  the  carrier  at  the  time  of  the  deliv- 
crv       The   purchaser,   for  his    own  convenience,    requests  the 
seller  to  send   him  the  goods,  with  authority  in    the   carrier  to 
receive  the   monev  for  them.     This  method  of  payment  is  the 
choice  of  the  purchaser,  under  such  an  order;   and  it  is  beyond 
question  that,  so  far  as  the    purchaser  is  concerned,  the  carrier 
is  his  a.'ent  for  the  receipt   and  transmission  of  the  money.     If 
the  seller  accedes  to  such  a  recpiest  by  the  purchaser,  he   cer- 
tiinlv  authorizes  the  purchaser  to  pay  the  money  to  the  carrier, 
•md  the  purchaser  is  relieved   of   all   liabilities   to  the  seller  for 
the  price  of  the  goods  if  he  pays  the  price  to  the  earner.      The 
liability  for  the  price  is  transferred  from  the   seller  to   the   car- 
rier •    and  whether  the  carrier  receives  the   price  or  not,  at  the 
time'  of  deliverv.  he  is  liable   to   the  seller   for  the   price    if  he 
does  deliver.     Substantiallv,  therefore,  if  the  delivery   is  made 
by  the  carrier,  and  he  chooses  to  give  credit  to   the    purchaser 
for  the  payment  of  the  price,  the  transaction  is  complete,  so  tar 
.,s  the  sel'ler  is  concerned,  and    the   purchaser   may   hold   the 
goods      Of  course,    if  the  seller  were  himself   delivering  the 
goods  in  parcels  upon    condition  that  on  delivery  of  the   last 
parcel    the    price   of  the  whole    should  be    paid,  it  would  be  a 
fruul  on  the  seller  if  the  purchaser,  after  getting  all  the  parcels, 
should  refuse  to  perform  the  condition  upon  which  he  obtained 
them,  and  in  such  circumstances  the  seller  would  be  entitled  to 
recover  the  goods.     This  was  the  case  in  Henderson  v.  Lauck, 
^i    I'a.    St.    359.     The    court   below,  in    that    case,  expressly 
chu-ed    that  if  the    seller   relied   on    the  promise   of  the   pur- 
ch-iser  to  pay,  and  delivered  the   goods   absolutely,  the  right  to 


-1 


HOrEUTY. 

and  hccnme 
;  iiif^umcnt  by 
that   the   pay- 

thc   delivery, 
.  and   no  title 
inference  was, 
jghcny.     This 
consideration, 
cer,  by  mail  to 
the    purchasers 
.  O.  D.     The 
e  price  of  the 
le  of  the  deliv- 
;,    requests  the 

the   carrier  to 
payment  is  the 
ind  it  is  beyond 
ned,  the  carrier 
the  money.     If 
chaser,  he  cer- 
y  to  the  carrier, 
to  the  seller  for 
e  carrier.      The 
!ler  to   the    car- 
:e  or  not,  at  the 
the   price    if  he 
elivery   is  made 
)   the   purchaser 
complete,  so  far 
-   may   hold   the 
f   delivering;  the 
very  of  the   last 
id,  it  would  be  a 
g  all  the  parcels, 
hich  he  obtained 
ild  be  entitled  to 
:lerson  v.  Lauck, 
t    case,  expressly 
nise   of  the   pur- 
itely,  the  right  to 


COMMONWKAI.TH  V.   ri.KMING. 


497 


the  property  was  chan<jcd,  although  the  conditions  were  never 
performed;  but  if  he  relied,  not  on  the  promise,  but  on  actual 
payment  at  the  delivery  of  the  last  load,  he  mif^ht  reclaim  the 
^oods  if  the  money  was  not  paid.  The  case  at  bar  is  entirely 
different.  So  far  as  the  seller  is  concerned,  he  is  satisfied  to 
take  the  responsibility  of  the  carrier  for  the  price,  in  place  of 
tiiat  of  the  seller.  lie  authorizes  the  purcluiser  absolutely  to 
pay  the  price  to  the  carrier;  and,  if  he  does  so,  undoubtedly 
the  purchaser  is  relieved  of  all  responsibility  for  the  price, 
wliethcr  the  carrier  ever  pays  it  to  the  seller  or  not.  Hut  the 
carrier  is  also  authorized  to  deliver  the  njoods.  If  he  does  so, 
and  receives  the  price,  he  is  of  course  liable  for  it  to  the  seller. 
Hut  he  is  equally  lialile  for  the  price  if  he  chooses  to  deliver 
the  goods  without  receiving  the  price.  It  can  not  be  ques- 
tioned that  the  purchaser  would  be  liable  also;  but,  as  he  had 
received  the  goods  from  one  who  was  authorized  to  deliver 
them,  his  right  to  hold  them  even  as  against  the  seller  is 
undoubted.  In  other  words,  the  direction  embodied  in  the 
letters  "C.  O.  D.,"  piaced  upon  a  package  committed  to  a 
carrier,  is  an  order  to  the  carrier  to  collect  the  money  for  the 
package  at  the  time  of  its  delivery.  It  is  a  part  of  the  under- 
taking of  the  carrier  with  the  consignor,  a  violation  of  which 
imposes  upon  the  carrier  the  obligation  to  pay  the  price  of  the 
ii.ticle  delivered,  to  the  consignor.  We  have  been  referred  to 
no  authority,  and  have  been  unable  to  discover  any,  for  the 
proposition  that  in  such  a  case,  after  actual,  absolute  delivery 
to  the  purchaser  by  the  carrier  without  payment  of  the  price, 
the  seller  could  reclaim  the  goods  from  the  purchaser  as  upon 
violation  of  a  condition  precedent. 

If  now,  we  pause  to  consider  the  actual  contract  relation 
lictween  the  seller  and  purchaser,  where  the  purchaser  orders 
the  goods  to  be  sent  to  him  C.  O.  D.,  the  matter  becomes  still 
more  clear.  Upon  such  an  order,  if  it  is  accepted  by  the  seller, 
it  become  the  duty  of  the  seller  to  deliver  the  goods  to  the 
carrier,  with  instruction  to  the  carrier  to  collect  the  price  at  the 
time  of  delivery  to  the  purchaser.  In  such  a  case  it  is  the  duty 
of  the  purchaser  to  receive  the  goods  from  the  carrier,  and.  at 
tlie  time  of  receiving  them,  to  pay  the  price  to  the  carrier. 
This  is  the  whole  of  the  contract,  so  far  as  the  seller  and  the 
purchaser  are  concerned.     It   is   at  once   apparent  that  when 

32 


49S     MODUS  c.  OUTA.MNO  nr...  TO  PP...SOSA,,  n„o,.,u.rv. 
the  seller  h».   clcUvevcJ    ll>c    Roo.ls   to   tl,o    cnicr,  jvith   the 

;:;:r;o,,toco,.c.t,.,.i^o.a.i..t>.„^.^^^^^^^^ 

•"";■""  'T'\'°':\,,  '  ,  r  acti,,,,  i.  complete  1  »".!  1.= 
of  the  ">""•»■'.';,,  ;„„,„  ,„,„  the  ,»rcl..,»r,  vvhete 
7''"I"r    .  *^-e,   to  taUe,  the  Ko„.l»  from  the 

U,e  P°-'-  ;;'„„„,„  ,„„  „.e  p»s.,ge  of  the  title  to  the 
™        ,«,  i,    o    es.e„t,al  .0  tne  le^al   eomple.e„es»  of  the  co„- 

"■""  ?  „l  V  le  \  he  eh  the  »ellef  tender,  delivery  at  the 
»  '»""■»"  °'  '■''°;  ,,',;,,.„  „„rce.l  upon,  In,,  the  purchaser 
time  ami  place  oi    dcluciy  „„,foetly  tan.iliar  laiv 

refuses  performauee.     "•';,-';','  „,,,'„  of  the  goods 

that  .1-  P-*-;  :;;«;;'  ,'\r'hnd  Ihem.     The  order 
:rr  '.;  ■"  °'  --W  a  superadded  terut  of  the  cou.ract; 

u  f',-T  •.  '    e  performed  l,y  the  purchaser,  aud  has  uo 

'I'r  rife.t  upo:.  the  Jontract  than  any  other  term  aflectur,  the 
other  ^"^-t  "  ,„  performed  l.y  the  purchaser, 

ficlum  e'  del  vcj.      t  m.  _  ^^  particular  time 

'""  "  '  ;-c';     r  X'        '"      nprrfo'rmauce  is  a  hreach  hy  the 

r  ^::.:'u.r:ost  cntiea,  ^^^^^^--^  — : 
■'-r'' Tirdii::;.;"";:' iir  r  het.een  .hose . .. 

'^:.  a"':i:ose  of  the  ^chaser  are  those  only  .^..^p-- 

1   nr,-    to   be  performed    by,  tne    caiuci.  > 

to,  and   aic    to  1  .^^  ^^  ^^^^.j        ^^„j  ,ie- 

have  before    seen    a. e   ^^ "-  ;7;' .;^^i^..„,,,  ^he  price  from  the 
IWery,  with  the  add.t.onal  ^'     y  «  J^    ^  ;-    ^.^    ,,,y  decided 

^"^r::;.rl:Ct:;  :;:  "d  l.h    presents^he  effect 
case  to  wl"^^  w^    «  ^^,.,,,,  ;,  „i.gins  v.  Murray,  73  ^• 

r;wr:;;:;tt:rtnefendantC.O.O.,  aud  they 


I 


itea 


[>Rori;KTY. 


CO.MMONWKAI.Til  V.    FI.UMING. 


499 


licr,  with  the 
;  piiichasor,  he 
ntract;  he  has 
erform  his  part 
nplctc ;  and  he 
irchascr,  where 
roods   from  the 

tlie  title  to  the 
less  of  the  con- 
iidinary  case  of 
delivery  at  the 
t  the  purchaser 
tly  familiar  law 
ice  of  the  goods 
cm.  The  order 
of  the  contract ; 
iser,  and  has  no 
;rm  affecting  the 
!  the  pnrchaser, 
t  particular  time 
s  a  breach  by  the 
■e  can  not  affect 
sale  as  complete, 
)ut  any  regard  to 
lias  passed  to  the 
roods  by  him.  If 
s  to  the  ground, 

of  the  contract 
for  civil  purposes 
rtcen  those  of  the 
inly  which  pertain 
er.  These,  as  we 
•f  carriage  and  de- 
thc  price  from  the 

The  only  decided 
presents  the  effect 
5  V.  Murray,  73  ^'• 
;  plaintiff  to  mann- 
they  were  finished, 
C.  6.  D.,  and  they 


svere  destroyed  by  fire  on  the  route.  It  was  held  that  tlie 
dcfenilant,  who  was  the  ]iurcliaser,  should  bear  the  loss;  that 
the  plaintiff  had  a  lien  on  the  tents  for  the  value  of  his  labor 
and  materials,  and  his  retaining  his  lien  by  shipping  them 
C  O.  D.  was  not  inconsistent  with,  and  did  not  affect,  his 
rigiit  to  enforce  the  defenilant's  lial)ility.  In  the  course  of  the 
opinion.  Chief  Justice  Church  said:  "Suppose,  in  this  case, 
that  the  defendant  had  refused  to  accept  a  delivery  of  the  tent, 
his  liability  would  have  been  the  same,  although  the  title  was 
not  in  him.  The  plaintiff  had  a  lien  upon  the  article  for  the 
value  of  his  labor  and  materials,  which  was  good  as  long  as 
he  retained  possession,  ♦  •  •  Retaining  the  lien  was  not 
inconsistent  with  his  right  to  enforce  the  liability  for  which  this 
action  was  brought.  That  liability  was  complete  when  the 
request  to  ship  was  made  by  the  defendant,  and  was  not 
affected  by  complying  with  the  request,  nor  by  retaining  the 
lien  the  same  as  when  the  request  was  made.  As  the  article 
was  shipped  at  the  request  of,  and  for  the  benefit  of,  the 
defendant  (assuming  that  it  was  done  in  accordance  with  the 
directions),  it  follows  that  it  was  at  his  risk,  and  could  not 
impair  the  right  of  the  plaintiff  to  recover  for  the  amount  due 
liim  upon  the  performance  of  his  contract.  *  ♦  «  As 
before  stated,  the  point  as  to  who  had  the  title  is  not  decisive. 
It  may  be  admitted  that  the  plaintiff  retained  the  title  as  secur- 
ity for  the  debt,  and  yet  the  defendant  was  liable  for  the  debt 
in  a  proper  personal  action,"  It  seems  to  us  this  reasoning  is 
perfectly  sound.  Practically,  it  was  ruled  that  the  effect  of 
the  order  C.  O,  D,  was  simply  the  retention  of  the  seller's 
lien,  and  that  such  retention  of  lien  is  not  inconsistent  with  a 
right  of  recovery  for  the  price  of  the  article,  though,  in  point  of 
fact,  it  is  not  delivered  to  the  purchaser.  Ii>  other  words,  the 
literal  state  of  the  title  is  not  decisive  of  the  question  of  liability 
of  the  purchaser,  and  he  may  be  compelled  to  pay  for  the 
article,  though  he  never  received  it  into  his  actual  possession. 
The  chief  justice  propounds  the  very  question  suggested, 
heretofore,  of  a  refusal  by  the  purchaser  to  accept  the  article, 
and  holds  that  his  liability  would  be  the  same,  though  the 
title  was  not  in  him. 

In  Hutchinson  on  Carriers,   at  section   389,   the  writer  thus 
states  the  position  and  duty  of  the  carrier:      "The  carrier  who 


500 


MODES  OK  OllTAlNING  TITI.K  TO   I'KRSDVAI.  PROPERTY. 


accepts  the  goods  with  such  instructions  [C.  O.  D.]  undertakes 
tliiit  tliey  sliall  not  lie  delivered  unless  the  condition  of  payment 
be  complied  with,  and  becomes  the  agent  of  the  shipper  of  the 
goods  to  receive  such    payment.     He   therefore  undertakes,   in 
addition  to  his  duties  as  carrier,  to  collect  for  the  consignor  the 
price  of  his  goods."      And  agai.i,  in  section  390:      "When  the 
goods  arc  so  received,  the  carriei  is  held  to  a  strict  compliance 
with  such  instructions;   and,  if  the  goods  arc  delivered  without 
an  exaction  from  the  consignee  of  the  amount  which  the  carrier 
is  instructed  to  collect,  he  becomes  liable  to  the  consignor  for 
it."     This  is  certainly  a  correct  statement  of  the  position  and 
liability  of  the  carrier.     He  becomes  subject  to  an  added  duty — 
that  of  collection;   and,  if  he   fails   to   perform   it,   he   is  liable 
to  the  seller  for  the  price  of  the  goods.      We  have  searched  in 
vain  for  any   text-writer's   statement,    or   any   decision,    to   the 
effect  that  ni  such  case  no  title   passes   to   the   purchaser.     We 
feel  well  assured  none  such  can  be  found,      liut,   if  this  be  so, 
the  whole  theory  that  the  title  does  not  pass  if  the  money  is  not 
paid  falls,  and  the  true  legal  sfai/ts  of   the  parties  results  that 
the  seller  has  a  remedy  for  the  price  of   his   goods  against  the 
carrier.     In  other  words,  an  order  from  a  seller  to  a  carrier  to 
collect  on  delivery,  accepted  by  the  carrier,  creates  a  contract 
between  the  seller  and  the  carrier,  for  a  breach  of  which  by  the 
carrier  the  seller  may  recover  the  price  from  him.      So  far  as 
the  seller    and  purchaser    are    concerned,    the   latter  is  liable, 
whether  he  takes   the   goods   from   the   carrier   or  not,  and  the 
order  itself  is  a  mere  provision  for  the  retention  of  the  seller's 
lien.     While,  if  the   goods  are  not  delivered  to  the  purchaser 
by  the  carrier,  the  title  does  not  pass,   that  circumstance  does 
not  affect  the  character  of  the  transaction   as   a  sale;    and  the 
light  of  the  seller  to  recover  the  price  from  the  purchaser,  if  he 
refuse  to  take  them,  is  as  complete   as   if   he   had  taken  them, 
and  not  paid  for  them. 

Thus  far  we  have  regarded  the  transactions  between  the  par- 
ties in  its  aspect  as  a  civil  contract  only :  but,  when  viewed  in 
its  aspect  as  the  source  of  a  criminal  prosecution,  the  transac- 
tion becomes  much  more  clear  of  doubt.  It  is  manifest  that, 
^vhen  the  purchaser  ordered  the  goods  to  be  sent  to  him  C.  O. 
D.,  he  constituted  the  carrier  his  agent,  both  to  receive  the 
goods  from  the  seller,  and  to   transmit  the   price  to  the  seller. 


OrKKTV. 

]  iiiulcrtnkcs 
1  of  payment 
hipper  of  the 
ulcrtakcs,  in 
:onsi^nor  tlio 

"WluMi  the 
t  compliance 
ercd  witlioiit 
ch  the  carrier 
:()nsi<jnor  for 
position  and 
added  duty — 
,  lie  is  lial)lc 
J  searched  in 
;ision,  to  the 
chaser.  We 
if  this  be  so, 
money  is  not 
;s  results  that 
s  aj^ainst  the 
)  a  carrier  to 
;es  a  contract 

which  by  the 
1.  So  far  as 
liter  is  lial)le, 
r  not,  and  the 
af  the  seller's 
the  purchaser 
imstance  does 
sale ;  and  the 
LU'chaser,  if  he 
1  taken  them, 

tween  the  par- 
hen  viewed  in 
I,  the  transac- 
manifest  that, 

to  him  C.  O. 
to  receive   the 

to  the  seller. 


i 


COMMONWKAI.TII   V.    M.KMING. 


501 


Wlien,  tlierefore,   the  goods  were  delivered    to  the    carrier  at 
l'itts!)urg    for  the    purpose    of    transportation,    the  duty  of  the 
seller  was  performed,    as   we    have    already   seen,   so  far  as  he 
and  the  purchaser  wero  concerned,    and    as   between    them  the 
transaction  was  complete.      The  duty  of  transportation  ilevolved 
upon  the  carrier,  and  for  this  he  was,   in   one  sense,   the  agent 
of  the  seller,  as  well  as  of  the  purchaser;    but,  as  it  was  to  be 
at  the  expense  of  the  purchaser,  the  delivery  to  the  carrier  was 
a  delivery  to  the  purchaser;    and  this  was  ruled   in  (iarbracht's 
case.      The  injunction  to  the  carrier  to   collect  the   money  on 
delivery  imposed  an  additional  duty  on  the  carrier,  which  the 
carrier  was.  of  course,  bound  to  discharge.     This  arrangement 
was  a  matter  of   convenience,   both   to  the  purchaser   and  the 
seller,  relative  to  the  payment  and   transmission   of  the  price ; 
but  that  is  all.     To  convert  this  entirely    innocent  and  purely 
civil  convention,  respecting  the  mode  of  collecting  the  price  of 
the  goods,  into  a  crime,  is,  in  our  judgment,  a  grave  perversion 
of  the  criminal  law,  to  which  we  can  not  assent.     As  a  matter 
of  course,  there  is  an  utter  absence   of   any   criminal    intent  in 
the  case.      The  defendant  had  a  license.     The  sale  was  made 
at  his  place  of  business,  and  both    the   sale    and  delivery  were 
completed  within  the  territory  covered  by  the  license.      If,  nov*r, 
a  criminal  character  is  to  be  given  to  the  transaction,  it  must  be 
done  by  means  of  a  technical   inference   that  the  title  did  not 
pass  until  the  money  was  paid ;   and  thus  that  the  place  of  sale, 
which  in  point  of  fact  was  in  Allegheny  county,  was  changed 
to  Mercer  county,   where  no  sale   was  made.     Even  granting 
that,  in  order  to  conserve   the  vendor's   lien,   such  a  technical 
inference  would  be  justified  for  the  purposes  of  a  civil  contract, 
it  by  no  means  follows  that  the  plain  facts  of  the  case  must  be 
clothed  with  a  criminal  consequence  on  that  account.     So  far 
as  the  criminal  law  is  concerned,  it  is  only  an  actual  sale  with- 
out license  that   is   prohibited.     But    theVe  was  no   such  sale, 
because  all  the  essentia'  facts  which  constituted  the  sale  trans- 
pired in  Allegheny  county,  where  the  defendant's  license  was 
operative.     The  carrier,  being  the  agent  of  the   purchaser  to 
receive  the  goods,  does  receive  them  from  the  seller  in  Alle- 
gheny county,  and  the  delivery  to  him  for  the  purpose  of  trans- 
portation was  a  delivery  to  the  purchaser.     This  is  the  legal, 
and    certainly   the   common,    understanding   of   a    sale.     The 


502       MODKS  OF  OIITAININO  TITLE  TO  PliltSUNAI,  riU)l'i:UTV. 

statulo,  bciiifj  criminnl,  must  be  strictly  construed;  and  only 
those  acts  which  are  plainly  within  its  meaning,  according  to 
the  common  understanding  of  men,  can  be  regarded  as  pro- 
hibited criminal  acts.  \Vc  can  not  consider,  therefore,  th.it  a 
mere  undertaking  on  the  part  of  the  carrier  to  collect  the  price 
of  the  goods  at  the  time  of  his  delivery  to  the  purchaser,  though 
the  payment  of  the  price  be  a  condition  of  the  delivery,  can 
suiVice  to  convert  tiie  seller's  delivery  to  the  carrier  for  trans- 
portation and  collection  into  a  crime.  We  therefore  hold  that 
the  sales  made  by  the  defendant  upon  orders,  C.  O.  D., 
received  from  the  purchasers  were  not  in  violation  of  the  crim- 
inal statute  against  sales  without  license,  and  the  conviction 
and  sentence  in  the  court  below  must  be  set  aside.  The  judg- 
ment of  the  court  of  quarter  sessions  is  reversed,  and  the 
defendant  is  discharged  from  Ins  rccogni;iancc  upon  this  ii.dict- 
nicnt. 

Consult— Norfolk,  etc.,  R.  Co.  v.  Barnes,  104  N.  C.  25;  State  v.  Carl, 
43  Ark.  353,  51  Am.  Rep.  565;  Piljjrccn  v.  State,  71  Ala.  36S;  State  v. 
Intoxicating  Liquors,  73  .Me.  27S;  State  v,  Flanag.Tn,  3b  W.  Va.  53; 
Drechwald  v.  People,  21  111.  (App.)  213. 


STATE  V.  O'XEIL. 
[48  Vt.  140;  56  Am.  Rep.  556.] 

Sziprciiic  Court  of  Vermont,  1886, 

RoYCE,  C.  J. — The  first  and  most  important  question  pre- 
sented by  these  cases,  is  whether  or  not  the  intoxicating  liquors 
in  question  were  (in  the  first  two  cases)  in  contemplation  of 
law  sold,  or  furnished,  by  the  respondent  in  the  county  of 
Rutland  and  state  of  Vermont;  or  (in  the  last  two  cases)  held 
and  kept  for  the  purpose  of  sale,  furnishing,  or  distribution 
contrary  to  the  statute,  within  said  county  and  state.  The 
answer  depends  upon  whether  the  National  Express  Company, 
by  which  some  of  said  liquors  were  delivered  to  the  consignees 
thereof,  and  in  whose  possession  the  remainder  were  found 
and  seized  before  delivery,  was  in  law  the  agent  of  the  vendors 
or  of  the  vendees.  If  the  purchase  and  sale  of  the  liquors  was 
fully   completed    in    the   state    of   New    York,    so   that   upon. 


M'LllTV. 

1 ;  and  only 
iccordin^  to 
dcd  as  pro- 
iforc,  lli.it  a 
cct  tlic  price 
laser,  though 
Iclivcry,  can 
LT  for  trans- 
>ic  hold  that 
C.  O.  D., 
of  the  crim- 
e  conviction 
The  jiulg- 
L'd,  and  the 
n  this  ii.dict- 

Stiite  V.  Carl, 
36S;  State  V. 
3b  W.  Vtt.  53; 


qncstion  pre- 
;ating  liquors 
emplation  of 
10  county  of 
0  cases)  hold 
■  distribution 

state.  The 
ss  Company, 
le  consignees 

were  found 
i  the  vendors 
e  liquors  was 
io   that   I'poa 


STATE    V.    O  NT.II.. 


5"3 


ilolivcry  of  them  to  the  csjircss  company  for  transportation  tiio 
title  veste'd  in  the  lonxignc-i-s,  as  in  the  cast- of  a  completed  and 
nncundilif^nal  sale,  then  no  offense  against  tlie  laws  of  this 
state  has  been  committed.  If,  on  the  other  hand,  the  sale  by 
its  terms  could  only  become  complete  so  as  to  pass  the  title  in 
the  licjuors  to  the  consignees  upon  tlie  doing  of  some  act,  or 
the  fullilling  of  some  condition  precedent  after  they  had 
reached  Rutland,  then  the  rulings  of  the  county  court  upon  tlie 
question  of  the  offense  were  correct. 

The  liquors  were  ordered  by  residents  of  Vermont  from 
dealers  doing  business  in  the  state  of  New  Yoi .  ,  who  selected 
from  their  stock  such  iiuantitics  and  kinds  of  goods  as  they 
thought  proper  in  compliance  with  the  terms  of  the  ord  rs,  put 
them  up  in  |)ackages,  directed  them  to  the  consignees,  and 
delivered  them  to  the  express  company  as  a  common  carrier  of 
"oods  for  transportation,  accompanied  with  a  bill,  or  invoice, 
for  collection.  The  shipment  was  in  each  instance,  which  it  is 
necessavy  here  to  consider,  "C.  O.  D. ;"  and  the  cases  show 
that  the  effect  of  the  transaction  was  a  direction  by  the  shipper 
to  the  express  company  not  to  deliver  the  goods  to  the  con- 
si'fnees  except  upon  payment  of  the  amount  specitled  in  the 
C.  O.  D.  bills,  together  with  the  charges  for  the  transportation 
of  the  packages  and  for  the  return  of  the  money  paid.  This 
direction  was  understood  by  the  express  company,  which 
received  the  shipments  coupled  therewith. 

Whether  or  not,  and  when,  the  legal  title  in  property  sold 
passes  from  the  vendor  to  the  vendee,  is  always  a  question  of 
the  intention  of  the  parties,  which  is  to  be  gathered  from  their 
acts,  and  all  the  facts  and  circumstances  of  the  case  taken 
together.  In  order  that  the  title  may  pass,  as  was  said  by 
Morton,  J.,  in  Mason  v.  Thompson,  iS  Pick.  305:  "The 
owner  must  intend  to  part  with  his  property,  and  the  purchaser 
to  become  the  immediate  owner.  Their'two  minds  must  meet 
on  this  point;  and  if  anything  remains  to  be  done  before  either 
assents,  it  may  be  an  inchoate  contract,  but  it  is  not  a  perfect 
sale."  The  authorities  seem  to  be  uniform  upon  this  point 
and  the  acts  of  the  parties  are  regarded  as  evidence  by  which 
the  court  or  jury  may  ascertain  and  determine  their  intent. 
Benj.  Sales,  sees.  31 1,  319,  note  (c).  When  there  is  a  condition 
precedent  attached  to  the  contract,  the  title  in  the  property  does 


5"1 


M.-UKS  nV  ..inMNIS>;  TITLK  TO  IMCUSONAt.   PI.. -rKl.  .  V 


not  puss  to  tlK-  ve.ulcc  unlil  performance  or  waiver  of  the  cou- 
^yj,^  ,,,,  Uu,u,M>  there  he  an  actual  delivery  of  possess.on. 
Beni.  Sales,  sec.  :^2..,  note  (d).  The  Vermont  cases  to  the 
alJe  points  are  referred  to  in  Koherls's  Digest,  (uo  et  se<,, 
ami  need  not  l.e  specially  revieue.l  here. 

I„  the  cases  under  cnnsiderati-u  the  vendors  of   the   lu,uors 
shipped    thenr    in    accordance    with    the    terms    of    the    orders 
n-ceived,    and    the  mo.le    of    shipment    was    as    above   stated. 
They  delivered  the  packages  of  licinors,  properly  a.ldressed  to 
the  several  persons  or.lerin-  the  same,  to  the  express  company, 
to  he  transported  hv  that  compa>^V   and   delivered  hy  -t  to  the 
consi.MK-es  upon  fulVdlment  hy   them  of  a  specified   cond.t.on 
pvecedent.  namely:   payment  of  the  purchase  jM-ice  and   trans- 
portation  charj,^es,  and   not  otherwise.      Attached    to  the    very 
i,odv  of  the  contract,  and  to  the  act  of  delivery  to  the  carr.er, 
.v.s'the  con.lilion  of  payment  before  .lelivcry  of  possession  to 
the  conshrnee.     With  this  condition  unfulfilled  and  not  waived, 
it  wouhl  be  impossible  to  say  that  a  delivery  to  thecarrier  wa. 
intended  by  the  consignor  as  a  delivery  to  the  consignee,  or  as 
a  surrender  of  the  lej^al  title.      The  goods  were  nUrusted  to  the 
carrier  to  transport  to  the  place  of  destination  named,  there  to 
present   them    for    acceptance    to    the    consignee,    and    if   he 
..ccepted    them    and    paiil  the    accompanying  mvo.ce  and    the 
U-ansportation  charges,  to  deliver  them  to  him;    otherw.se    to 
notifv  the  consignor  and  hold   them  subject  to  h.s  order.      It  is 
<r,trKult  to  see  how  a  seller  could  more  positively  and  unequ.v- 
oc-dlv  express  his  intention  not  to  relinquish  his  right  ot  pn.p- 
erJv  m-  possession  in  goods  until  payment  of  the  purchase  pr.ce 
than  by  this  method  of  shipment.     We  do  not  think  the  case  ,s 
distinguishable  in    principle    from    that  of  a  vendor  who    sends 
his  clerk  or  agent  to  deliver  the  goods,  or  forwards  them  to,   or 
makes  them    deliverable    upon    the    order   of,  his   agent,  with 
instructions  not  to  deliver  them  except  on  payment  of  the  price, 
or  performance  of  some  other  specified  condition  precedent  by 
the  vendee.     The    vendors  made   the   express   company  their 
^eent  in  the  matter  of  the  delivery  of  the  goods,  with  instruc- 
tions not  to  part  with  the  possession  of  them  except  upon  prior 
or  contemporaneous  receipt  of  the  price.     The  contract  of  sale 
therefo.o  remained  inchoate  or  executory  while  the  goods  were 
in  transit,  or  in  the  hands  of  the  express  company,  and   could 


iiiirr.iiTV. 

^er  of  the  cou- 
of  possession, 
t  cases  to  tlie 
,t.  6io  ct  se<i., 

of  the  ruiuors 
of    the    orders 

aliove  stated. 
Iv  a(hhessed  to 
)iess  company, 
red  hy  it  to  the 
ificd  condition 
rice  and  trans- 
:d   to  the   very 

to  the  carrier, 
)f  possession  to 
uid  not  waived, 

the  carrier  \va^; 
;onsi};fnec,  or  as 

intrusted  to  the 
named,  there  to 
nee,    and    if   he 
invoice  and    tlie 
i;    otherwise,  to 
his  order.      It  is 
ily  and  unequiv- 
is  right  of  prop- 
e  purchase  price 
think  the  case  is 
nidor  who    sends 
ards  them  to,   or 
,  his   agent,  with 
tient  of  the  price, 
:ion  precedent  by 
s   company  their 
ids,  with  instruc- 
jxcept  upon  prior 
e  contract  of  sale 
.e  the  goods  were 
npany,  and   could 


STATK    \'.    o'nKII.. 


505 


onlv  become  executed  and  complete  by  their  delivery  to  tlie 
consignee.  Tiiere  was  a  completed  executory  contract  ot  sale 
in  New  ^■orl^;  1  ut  the  completed  sale  was,  or  was  to  be,  in 
this  state. 

The  authorities  upon  the  above  points  and  principles  arc  so 
numerous,  and  are  so  fully  collated  in  the  brief  of  the  learned 
coi"'>-<'l  for  the  state,  and  in  the  text  and  notes  of  .t  Denj.  .Sales 
[.)  Kd.],  that  we  refrain  from  si^ecific   references   in   sup- 

port of  the  conclusion  at  which  we  have  arrived.  These  are 
luUy  supported  by  the  decision  of  the  United  State.-,  district 
court  in  Illinois  in  People  v.  Shriver,  31  Alb.  L.  J.  163,  23 
l'\d.  Rep.  134,  a  case  involving  precisely  the  same  qu"' ''on. 
Treat,  J.,  savs  in  the  opinion:  "In  the  case  of  liquor  i,..i,  ped 
by  the  defendant  to  Fairfield  by  express,  C.  O.  D.,  the  liquor 
is  received  by  the  express  company  at  .Shawneetown  as  the 
agent  of  the  seller,  and  not  as  the  agent  of  the  buyer,  and  on 
its  reaching  Fairfield  it  is  there  held  by  the  company,  as  the 
agent  of  the  seller,  until  the  consignee  comes  and  pays  the 
money,  and  then  the  company,  as  the  agent  of  the  seller, 
tlelivers  the  liquor  to  the  purchaser.  In  such  case  the  posses- 
sion  of  the  express  company  is  the  possession  of  the  seller,  and 
ge'  -illy  the  right  of  property  remains  in  the  seller  until  the 
J  nt  of  the  prici'.      An  order   from  a  person   in  Fairfield  to 

i...        .endant  at  Shawneetown  for  two  gallons  of  liquor,  to  be 
shipped    to    Fairfieli',  C.  O.  D.,  a  mere    offer  by  the    person 
sending  such  order  to  purchase  two  gallons  of    liquor  from  the 
defendant,  and   pay  him   for    it   when    he  delivers  it  to  him  at 
Fairfield,  and  a  shipment  by  the  defendant  according  to  such 
order  is  practically  the  same  as  if  the  defendant  had   himself 
taken  two  gallons  of  liquor  from  his  store   in  Shawneetown, 
carried  it  in  person  to  Fairfield,  and  there  delivered   it   to  the 
purchaser,  and  received  the  price  of  it.     It  would  be  different 
if  the  order  from  Fairfield  to  the  dcfend?int  was  a  simple  order 
to  ship  two  gallons  of  liquor  by  express  to  the  person  ordering, 
whether  such  order  was  accompanied  by  the  money  or  not. 
The  moment  the  liquor  under  such  an   order  was  delivered  to 
the  express  company  at   Shawneetown   it  would  become  the 
property  of  the    person    ordering,  and  the   possession    of  the 
express   company   at   Shawrieetown  would   be    the  possession 
of  the  purchaser— the  sale  would  be  a  sale  at  Shawneetown— 


5o6       MODES  OF  OBTAINING  TITLE  TO  PEKSONAL  PROPERTY. 

and  if  it  were  lost  or  destroyed  in  transit  tlie  loss  would 
fall  upon  the  purchaser.  But  in  the  case  at  bar  the  ship- 
ping of  the  liquor  to  Fairfield,  C.  O.  D.,  the  defendant 
made  no  sale  at  .Shawnectown  ;  the  right  of  property  rem  lined 
in  himself,  and  the  right  of  possession,  as  well  as  the  actual 
possession,  remained  in  him  through  his  agent.  Had  it  been 
lost  or  destroyed  in  transit  -the  loss  would  have  fallen  on  him- 
self. He  simply  acted  upon  the  request  of  the  purchaser,  and 
sent  the  liquor  to  Fairfield  by  his  own  agent,  and  there  effected 
a  sale  by  receiving  the  money  and  delivering  the  liquor." 

[Omitting  a  constitutional  question.] 

The  inevitable  deduction  from  what  has  been  said  under  the 
first  point  is,  that  the  respondent,  O'Neil,  by  what  he  did  in 
respect  of  the  trrnsactions  in  question,  made  the  express  com- 
pany his  agent;  and  as  what  was  done  by  such  agent  in  the 
execution  of  the  authority  and  instructions  directly  given  by 
him  committed  offenses  against  the  statute,  O'Neil  must  be 
held  responsible.  That  he  was  innocent  of  any  purpose  or 
intent  to  break  the  law,  and  was  unaware  that  what  he  did  was 
contrary  to  law,  can  not  avail  him  in  defense.  State  v.  Com- 
ings, 28  Vt.  50S. 

Consult— People  v.  Shriver,  23  Fed.  Rep.  134;  U.  S.  v.  Cline,  26 
Fed.  Rep.  517;   Baker  v.  Boucicault,  I  Daly,  26. 


§  89.    Goods  sold  on  condition— "Sale  or  return." 
DEARBORN  v.  TURNER. 

[16  Me.  17;  33  Am.  Dec.  130.] 

Si(f>rc)iic  Court  of  Maine,  1836. 

The  plaintiff  brought  trover  for  a  cow  and  calf  delivered  by 
the  plaintiff  to  one  Nason,  who  sold  them  to  the  defendant 
within  one  year. 

Westox,  C.  J. — The  plaintiff  delivered  to  Nason  a  cow  and 
calf,  for  which  he  took  his  written  promise  to  return  the  same 
cow  within  a  year,  with  a  calf  by  her  side,  or  to  pay  twenty-two 
dollars  and  fifty  cents.     We  arc  very  clear  that  the  security  of 


AL  PROPERTY. 

:  the  loss  would 
:  at  bar  the  ship- 
).,  the  defendant 
property  rem  lined 
veil  as  the  actual 
mt.  Had  it  been 
ave  fallen  on  him- 
he  purchaser,  and 

and  there  effected 

the  liquor." 

tion.] 

:en  said  under  the 
by  what  he  did  in 
:  the  express  com- 
such  agent  in  the 
directly  given  by 
,  O'Neil  must  be 
)f  any  purpose  or 
\t  what  he  did  was 
e.     State  v.  Com- 

4;   U.  S.  V.  Cline,  26 


:  return." 
R. 

] 

calf  delivered  by 
to  the  defendant 

0  Nason  a  cow  and 
to  return  the  same 
r  to  pay  twenty-two 
hat  the  security  of 


HUNT    V.    WYAfAN. 


507 


tlie  plain^if  vested  in  contract;  and  that  Nason,  having  the 
alternaf  return  or  pay,  the  property  passed  to  him  and  he 

was  at  liberty  to  sell  the  cow.  Tibbets  v.  Towle,  3  Fairf. 
341,  was  a  very  different  case.  There  the  plaintiff  expressly 
reserved  to  himself  the  title  to  the  oxen  until  paid  for.  The 
case  of  Ilurd  v.  West,  7  Cow.  752,  decides  expressly  that  where 
an  alternative  exists  the  title  to  the  property,  in  a  case  like  this, 
is  transferred  upon  the  delivery. 

Plaintiff  nonsuit. 

Consult— McKinny  v.  Bradlee,  117  Mass.  321;  Crocker  v.  Gullifer, 
44  Me.  493;  Sturm  V.  Baker,  150  U.  S.  328;  Schlessinger  v.  Stralton, 
9R.  I.  ,i7S;  Ilotchkiss  v.  Iliggins,  52  Conn.  205,  52  Am.  Rep.  582; 
Ray  V.  Thompson,  12  Cush.  2S1,  59  Am.  Dec.  187;  House  v.  Beak,  141 
111.  290. 


§  90.    Same— Sale  "on  trial,"  or  "approval." 
HUNT  V.  VVYMAN. 

[100  \Iivss.  19S.] 
Supreme  Judicial  Court  of  Massachusetts,  1868. 

Wells,  J. — Upon  the  facts  stated  in  this  case,  there  was  a 
bailment  and  not  a  sale  of  the  horse.  The  only  contract,  aside 
from  the  obligations  implied  by  law,  must  be  derived  from  the 
statement  of  the  defendant  that,  if  the  plaintiff  "would  let  him 
take  the  horse  and  try  it,  if  he  did  net  like  it  he  would  return  it 
in  as  good  condition  as  he  got  it."  This  contract,  it  is  true,  is 
silent  as  to  what  was  to  take  place  if  he  should  like  it,  or  if  he 
should  not  return  it.  It  may  perhaps  be  fairly  inferred  that 
the  intent  was  that  if  he  did  like  the  horse  he  was  to  become 
the  purchaser  at  the  price  named.  But,  even  if  that  were 
expressed,  the  sale  would  not  take  effect  until  the  defendant 
should  determine  the  question  of  his  liking.  An  option  to 
purchase  if  he  liked  is  essentially  different  from  an  option  to 
return  a  purchase  if  he  should  not  like.  In  one  case  the  title 
will  not  pass  until  the  option  is  determined;  in  the  other  the 
property  passes  at  once,  subject  to  the  right  to  rescind  and 
return. 


5oS       MODES   OF  OHTAIMNC;  TITLE   TO  I'KUSONAL  I'KOl'liHTV. 

A  mere  failure  to  return  the  horse  within  the  time  nsreed 
may  be  a  breach  of  contract,  upon  which  the  phiintiff  is  entitled 
to  an  appropriate  remedy ;  but  has  no  such  legal  effect  as  to 
convert  tlie  bailment  into  a  sale.  It  might  be  evidence  of  a 
determini'.tion,  by  the  defendant,  of  his  option  to  purchase. 
Hut  it  would  be  only  evidence.  In  this  case,  the  accident  to 
the  horse,  before  an  opportunity  was  had  for  trial  in  order  to 
determine  tlie  option,  deprives  it  of  all  force,  even  as  evidence. 

This  action,  being  founded  solely  upon  an  alleged  sale  of  the 
horse  for  an  agreed  price,  can  not  be  maintained  upon  the 
evidence  reported. 

Exceptions  overruled. 

CoNSL'LT— Clare  V.  O'Donnell,  84  Mich.  338;  Pierce  v.  Conlev,  56 
Midi.  552;  Mowbray  v.  Cacly,  40  Iowa,  604;  Hartford  Sorgluiin  Co.  v. 
lUish,  43  Vt.  5jS;  Aiken  v.  Hyde,  99  Mass.  1S3;  Witherl)y  v.  Sleeper, 
loi  M.-iss.  13S;  Wilson  v.  Stratton,  47  Me.  1.20;  Cliamberlain  v.  Smitli, 
44  Pa.  St.  131;  Carter  V.  Wallace,  35  Hun,  189;  Head  v.  Tattersall,  L. 
R.  7  Ex.  7. 


§  91.    Same— Sale  of  goods  "to  arrive." 

ROGERS  V.  WOODRUFF. 

[23  Oliio  St.  632;  13  Am.  Rep.  276.] 

S/iproiic  Court  of  Ohio,  i8jj. 

Stonk,  J. — The  plaintiff  sued  for  the  price  of  eight  hundred 
and  eighty-three  sacks  of  salt.  The  defendant  set  up  as  a 
counterclaim  a  contract  signed  by  the  plaintiff's  agent  as  fol- 
lows: "Sold  J.  II.  Rodgcrs  1,000  sacks  coarse  Liverpool  and 
3,000  sacks  fine  Liverpool  salt  at  $3.10  per  sack  to  arrive  by 
the  15th  November."  The  counterclaim  of  the  defendant 
below  is  based  upon  an  executory  contract  made  October  13, 
1S63,  by  which,  as  defendant  alleges,  the  plaintiffs  .sold  and 
contracted  to  deliver  to  him  by  the  fifteenth  of  November,  then 
next  ensuing,  three  thousand  sacks  of  Liverpool  salt.  This 
allegation  of  the  counterclaim  is  denied  by  the  reply,  and  is 
not,  in  our  judgment,  supported  by  the  contract  given  in 
evidence. 


lOl'EKTV. 

time  iifirecd 
tiff  is  entitled 

effect  as  to 
vidence  of  a 
to  piiicliase. 
2  accident  to 
il  in  order  to 
I  as  evidence, 
cd  sale  of  the 
led  upon  the 

ns  overruled. 

V.  Conley,  56 
orghuin  Co.  v. 
by  V.  Sleeper, 
rlain  v.  Smith, 

Tattersall,  L. 


light  hundred 

set    up   as   a 

agent  as  fol- 

Liverpool  and 

to  arrive  by 

he   defendant 

October   13, 

tiffs  sold  and 

>vember,  then 

1    salt.     This 

reply,    and  is 

act   given   in 


] 


ROGEUS     V.    WOODRUFF. 


509 


Effect  is,  of  course,  to  be  given  to  the  words  of  the  contract, 
"to  arrive  by  the  fifteenth  of  November,"  l)ut  the  ciiiestion  is, 
what  effect?  They  are,  as  we  think,  words  of  condition  .ind 
description  only,  and  can  not  construed  as  a  warranty  that  the 
salt  ah?!l  arrive. 

They  serve  to  distinguish  the  salt  which  was  the  subject  of 
the  contract  from  the  mass  of  salt  of  the  same  variety  found  in 
the  market.  The  salt  plaintiffs  contracted  to  sell  and  defend- 
ants to  buy,  was  not  salt  which  plaintiffs  may  then  have  had 
on  hand,  or  salt  which  had  previously  arrived.  It  was  salt 
which  was  to  arrive  between  the  date  of  the  contract  and  the 
fifteenth  of  November  following.  Whether  it  would  arrive  or 
not  depended  upon  contingencies,  not  absolutely  within  the 
control  of  either  party.  If  it  arrived  within  the  time  limited, 
plaintiffs  were  impliedly  bound  to  deliver  it  upon  the  contract. 
If  it  failed  to  arrive  within  that  time  no  such  obligation  arose. 
There  was,  in  that  case,  no  salt  which,  under  the  terms  of  the 
contract,  the  plaintiffs  were  bound  to  deliver  or  the  defendant 

to  accept. 

Cases  have  frequently  arisen  involving  the  construction  of 
contracts,  in  their  essential  features,  not  to  be  distinguished 
from  the  contract  here  in  question.  It  has  uniformly  been 
held  that  contracts  of  this  description— for  the  sale  of  goods  to 
arrive— are  conditional,  the  words  "to  arrive,"  or  other  equiv- 
alent words,  not  importing  a  warranty  that  the  goods  will  arrive, 
and  the  obligation  to  perform  the  contract  by  an  actual  transfer 
of  the  property  being,  therefore,  in  the  absence  of  other  words 
showing  a  contrary  intent,  contingent  upon  its  arrival.  Alewyn 
V.  Pryor,  Ryan  &  Moody,  21  Eng.  Com.  Law,  406;  Lovatt  v. 
Hamilton,  5  M.  &  W.  639;  Johnston  v.  Macdonald,  9  M.  & 
W.  600;  Shields  V.  Pettee,  2  Sand.  263.  See,  .ilso,  Russell 
V.  Nicol,  3  Wend.  112;  Benj.  on  Sales,  470;  i  Parsons  on 
Cont.,  title  "Of  Sales  to  Arrive,"  and  causes  cited. 

In  the  present  case,  it  is  not  alleged  that  any  of  the  salt 
referred  to  in  the  contract  arrived,  or  came  within  the  control 
„f  the  plaintiffs  prior  to  the  fifteenth  of  November,  nor  is  it 
claimed  that  its  arrival  was  delayed  by  their  agency.  The 
defendant  counts  upon  the  contract  as  made,  and  bases  his 
claim  to  recover  solely  upon  the  ground  that  the  plaintiffs,  by 


5IO       MODES  OF  OnTAININ(;  TITLE  TO  rEKSONAL  PIlOrERTy. 

its  terms,  stipulated  al)solutely,  and  at  all  events,  to  deliver  the 
salt  within  the  time  limited. 

3.  The  testimony  offered  by  defendant  to  show  that  by  the 
custom  of  merchants,  the  words  "to  arrive  by  the  fifteenth  of 
November,"  meant  '-deliverable  on  or  before  the  fifteenth  of 
November,"  tended  materially  to  change  the  meaiiing  and 
legal  effect  of  the  contract,  and  was  clearly  incompetent. 

Judgment  affirmed. 

Consult— Shields  V.  Peltee,  4  N.  Y.  122;  Henedict  v.  Field,  16X.  V. 
595 ;  Rogers  V.  VVoodrutf,  23  Ohio  St.  632;  Smith  v.  Petlee,  70  N.  Y. 
13;  Neldon  v.  Smith,  36  N.  J.  (L.)   14S. 


§  92.    Rights  of  purchasers— Market  overt. 
GRIFFITH  V.  FOWLER. 

[.8Vt.  390.] 
Sufrcmc  Court  of  Vermont^  1846. 

Trespass  for  taking  a  shearing  machine.  The  case  was  sub- 
mitted upon  a  statement  of  facts,  agreed  to  by  the  parties,  from 
which  it  appeared  that  in  1S36,  the  defendant,  being  the  owner 
of  the  machine  in  question,  lent  it  to  one  Freeman  to  use  in 
his  business  as  a  clothier,  who  was  to  pay  a  yearly  rent  therefor, 
and  in  whose  possession  it  remained  until  the  year  1841,  when 
it  was  sold  at  sheriff's  sale,  on  execution,  as  the  property  of 
Freeman,  and  one  Richmond  became  the  purchaser;  that  Rich- 
mond, in  January,  1S42,  sold  the  machine  to  the  plaintiff,  who 
at  the  same  time  purchased  of  Freeman  the  building,  in  which 
the  machine  was  situated,  and  took  possession  thereof;  and 
that  the  defendant,  in  February,  1S42,  took  the  machine  from 
the  plaintiff's  possession,  claiming  it  as  his  property.  The 
value  of  the  machine  was  admitted  to  be  fifty  dollars.  Upon 
these  facts  the  county  court— Hebard,  J.,  presiding — rendered 
judgment  for  the  defendant.     Exceptions  by  plaintiff. 

Redfield,  J, — The  only  question  reserved  in  this  case  is, 
whether  a  title  to  personal  property,  acquired  by  purchase  at 
sheriff's  sale,  is  absolute  and  indefeasible  against  all  the  world, 
or  whether  such  sale  only  conveys  the  title  of  the  debtor. 


OPEUTY. 

o  deliver  the 

that  by  the 
fifteenth  of 
fifteenth  of 

neaiiing   and 

octent. 

ent  afliimed. 

Field,  16N.V. 
lee,   70  N.  Y. 


GRIFFITH    V.    K0\VM:R. 


It 


:ase  was  sub- 
parties,  from 
ng  the  owner 
lan  to  use  in 
rent  therefor, 
r  1 84 1,  when 
propert}'  of 
r ;  that  Kicli- 
jhiintiff,  who 
iig,  in  which 
thereof ;  and 
nachiiie  from 
jperty.  The 
iHars.  Upon 
ig — rendered 
itiff. 

1  this  case  is, 
y  purchase  at 
ill  the  world, 
debtor. 


There  has  long  been  an  opinion,  very  general,  1  think,  in 
this  state,  not  only  among  the  profession,  but  the  people,  that 
a  purchaser  at  sheriff's  sale  acquires  a  good  title,  without  refer- 
ence to  that  of  the  debtor,  that  such  a  sale,  like  one  in  vmrkct 
overt  in  England,  conveys  an  absolute  title.  But,  upon  examina- 
tion, I  am  satislied  that  this  opinion  acts  upon  no  good  basis. 
So  far  as  can  now  be  ascertained,  this  opinion,  in  this  state, 
rests  mainly  upon  a  dictinn  in  the  case  of  lleacoi  k  v.  Walker, 
I  Tyl.  33S.  There  are  many  reasons  why  this  dictum  should 
not  be  regarded,  if  the  matter  were  strictly  res  Integra.  It  was 
a  declaration  of  the  chief  justice  in  charging  the  jury.  Cases 
were  then  tried  by  the  jury  at  the  bar  of  this  court,  as  matter  of 
right,  and  in  course,  and  before  t'.ie  law  of  the  case  had  been  dis- 
cussed and  settled  by  the  court.  In  all  these  respects  these 
trials  differed  essentially  from  jury  trials  at  the  bar  of  the 
higher  courts  in  Westminster  Hall,  such  trials,  there,  being 
only  matter  of  favor,  granted  in  the  most  important  cases,  and 
after  the  law  of  the  cases  has  oeen  fully  discussed,  and  settled 
by  the  court. 

The  law  given  to  the  jury,  in  the  two  cases,  will  of  course, 
partake  something  of  the  character  of  the  respective  form  and 
deliberation  of  the  trials.  Under  our  former  practice,  law  laid 
down  in  the  course  of  a  jury  trial,  unless  when  questions  were 
reserved  and  farther  discussed  upon  motions  for  new  trials,  was 
not  much  esteemed,  even  when  it  was  upon  the  very  point  in 
dispute.  But  especially  the  dicta  of  the  judge,  who  tried  the 
case,  and  who  must,  of  necessity,  somewhat  amplify  the  bare 
text  of  the  law,  in  order  to  show  the  jury  the  reason  upon  which 
it  was  based,  could  not  be  esteemed  as  anything  more  than  the 
hastily  formed  opinion  of  the  judge — mere  argument  to  satisfy 
some  possible,  or  apprehended,  doubt  of  the  jury  in  regard  to 
the  soundness  of  the  main  proposition  laid  down.  Such  was 
the  di<tnm  refeired  to.  That,  which  was  said  of  Chief  Justice 
Tilghman,  of  Pennsylvania,  is  undoubtedly  good  praise,  when 
said  of  any  judge:  "Me  made  no  dicta,  and  he  regarded 
none."  There  are  sufiicient  reasons  why  the  dictum  should 
not  be  regarded,  if  the  thing  were  new.  And  we  do  not 
esteem  the  long  standing  of  the  dictum  of  any  importance, 
unless  it  can  be  shown  that  it  has  thus  grown  into  a  generally 
received  and  established  law,  or  usage;   which,  we  think,  is  not 


512 


MOPKS  OK  OIITAIXIN'G  TITI.K  TO  PERSONAL  PROrERTY. 


the  case  in  rcjjard  to  this.  For  this  court  has,  within  the  last 
ten  years,  repeatedly  held,  that  a  sheriff's  sale  was  of  no  valid- 
ity to  pass  any  but  the  title  of  the  debtor,  when  no  actual  deliv- 
ery of  the  thing  sold  was  made  by  the  sheriff,  at  the  tim-  of 
sale.  Austin  v.  Tilden  et  al.,  14  Vt.  325;  lioynton  v.  Kelsey, 
Caledonia  county,  1S36;  S.  P.,  Lamoille  county,  1841.  Since 
the  first  of  these  cases  was  decided,  the  main  question  involved 
in  this  case  has  been  consitlered  doubtful  in  this  state,  and  we 
now  feel  at  liberty  to  decide  it,  as  we  think  the  law  should  be, 
that  is,  as  it  is  settled  at  common  law. 

But  the  idea,  that  some  analojify  existed  between  a  sheriff's 
sale  and  a  sale  in  viarkct  overt  is  certainly  not  peculiar  to  the 
late  Chief  Justice  Tyler.  This  opinion  seems  at  one  time  to 
have  prevailed  in  Westminster  Hall,  to  some  extent,  at  least; 
for  in  the  case  of  Farrant  v.  Thompson,  5  B.  &  A.  S26  [7  E. 
C.  L.  449],  which  was  decided  in  the  King's  Bench  in  1823, 
nearly  twenty  years  later  than  that  of  Heacock  v.  Walker,  one 
of  the  points  raised  in  the  trial  of  the  case  before  Chief  Justice 
Abbott  was,  that  the  title  of  the  purchaser,  being  acquired  at 
sheriff's  sale,  was  good  against  all  the  world,  the  same  as  that 
of  a  purchaser  in  market  overt.  This  point  was  overruled, 
and  a  verdict  passed  for  the  plaintiff,  but  with  leave  to  move  to 
set  it  aside,  and  to  enter  a  nonsuit,  upon  this  same  ground, 
with  one  other.  This  point  was  expressly  argued  by  Sir  Jni 
Scarlet — who  was  certainly  one  of  the  most  eminent  coui'sei, 
and  one  of  the  most  discriminating  men  of  modern  times — in 
the  King's  Bench,  and  was  decided  by  the  court  not  to  be  well 
taken.  Since  that  time  I  do  not  find  that  the  question  has 
been  raised  there. 

It  seems  to  be  considered  in  Massachusetts,  and  in  New 
York,  and  in  many  of  the  other  states,  that  nothing  analogous 
to  markets  overt  in  England,  exists  in  this  country.  Dame  v. 
Baldwin,  8  Mass.  51S;  Wheelwright  v.  Depeyster,  i  Johns. 
480;  2  Kent,  324,  and  cases  there  cited.  Nothing  of  that 
kind,  surely,  exists  in  this  state,  unless  it  be  a  sheriff's  sale. 
And  if  the  practice  of  holding  sales  in  market  overt  conclusive 
upon  the  title  existed  in  any  of  the  states,  it  would  be  readily 
known.  I  conclude,  therefore,  that  Chancellor  Kent  is  well 
founded  in  his  opinion  when  he  affirms  that  the  law  of  markets 
overt  does  not  exist  in  this  country.      lb. 


:« 


OPERTY. 

ithin  the  last 
of  no  valid- 
actual  (leliv- 
tlie  tim-;  of 
)n  V.  Kflsey, 
841.  Since 
ion  involved 
tatc,  and  we 
rv  should  be, 

1  a  sheriff's 
Hiliar  to  the 
one  time  to 
nt,  at  least ; 
\.  S26  [7  E. 
ich  in  1823, 
Walker,  one 
Chief  Justice 
acquired  at 
same  as  that 
s  overruled, 
e  to  move  to 
ime  ground, 
by  Sir  Jni 
lent  course', 
rn  times — in 
lot  to  be  well 
question  has 

and  in  New 
ig  analogous 
y.  Dame  v. 
er,  I  Johns, 
hing  of  that 
sheriff's  sale. 
'rt  conclusive 
Id  be  readily 
Kent  is  well 
w  of  markets 


GRIFFITH    V.    FOWLER. 


5'S 


It  seems  proliable  to  me  that  the  idea  of  the  conclusiveness 
of  a  sheriff's  sale  upon  a  title  is  derived  froin  iln.-  effect  of  sales 
under  condemnations  in  the  excliequer,  for  violations  of  the 
excise  or  revenue  laws,  and  sales  in  prize  cases,  in  the  Admir- 
nlfy  courts,  either  provisionally,  or  after  condemnation.  l?ut 
tliese  cases  be:ir  but  a  slight  analogy  to  sheriff's  sales  in  this 
country,  or  in  England.  Those  sales  are  strictly  judicial,  and 
are  merely  carrying  into  spccilic  execution  a  decree  of  the  court 
in  rent,  which,  by  universal  consent,  binds  the  whole  world. 

Something  very  similar  to  this  exists,  in  practice,  in  those 
countries,  which  are  governed  by  the  civil  law;  which  is  the 
fact  in  one  of  the  American  ^tates,  and  in  the  provinces  of 
Canada,  and  in  most,  if  not  all,  the  continental  states  of  Europe. 
The  property,  or  what  is  claimed  to  be  the  property,  of  the 
debtor,  is  seized  and  libeled  for  sale,  and  a  general  monition 
served,  notifying  all  having  adversary  claims  to  interpose  them 
before  the  court,  by  a  certain  day  limited.  In  this  respect  the 
proceedings  are  similar  to  proceedingsMn  prize  courts,  and  in 
all  other  courts  proceeding  in  rem.  If  no  claim  is  interposed, 
the  property  is  condemned,  by  default,  and  sold;  if  such  claims 
are  made,  they  are  contested,  and  s^'ttled  by  the  judgment  of 
the  court,  and  the  rights  of  properly  in  the  thing  are  thus  con- 
clusively settled  before  the  sale. 

But  with  us  nothing  of  this  character  exists  in  regard  to 
sheriff's  sales.  Even  the  right  to  summon  a  jury  to  inquire 
into  conflicting  claims  do  bene  esse,  as  it  is  called  in  England, 
and  in  the  American  states,  where  it  exists,  has  never  been 
resorted  to  in  this  state.  And  in  England,  where  such  a  pro- 
ceeding is  common — Impcy,  153;  Dalton,  146;  Fair  et  al.  v. 
Newman  et  al.,  4  T.  R.  621 — it  docs  not  avail  the  sheriff,  even, 
except  to  excuse  him  from  exemplary  damages.  Latkow  v. 
i:amer,  3  II.  Bl.  437;  Glossop  v.  Pole,  3  1^1.  &  S.  175.  It  is 
plain,  then,  that  a  sheriff's  sale  is  not  a  judicial  sale.  If  it 
were,  no  action  could  be  brought  against  the  sheriff,  for  selling 
upon  execut'on  property  not  belonging  to  the  debtor. 

With  us  an  execution  is  defined  to  be  the  putting  one  in  pos- 
session of  that  which  he  has  already  acquired  by  judgment  of 
law.  Co.  Lit.  154a  (Thomas'  Ed.  405).  But  the  judgment 
is  of  a  sum  in  gross  "to  be  levied  of  the  goods  and  chattels  o£ 

33 


514       MODES  OK  OIWAINING  TITLE  TO  I'KUSONAL  rUUl'KUTV. 

the  debtor,"  Nvbich  the  sheriff  is  to  find  at  his  peril.     Tiic  sale 
upon  the  execution  is  only  a  transfer,   by   operation   of   law,  ot 
Nvhat  the  debtor  mi-ht  himself  tra.isfer.     It   is   a  principle    cu 
the  law  of  property,   as  old  as   the   Institutes   of  Jnstnv.am^  / 
nemo  tins  juris   in  alinm  transfcrrc  potest,  qnam  ipschabct. 
The  comparison  of  sheriff's  sales  to  the  sale  of  -oods  lost,  or 
cstravs,    in   pursuance  of   statutory   provisions,   which   es.st  m 
many  of  the  states,  does  not,  in  my  opinion,    at  all  hold   g<.o(l. 
Those    sales    undoubtedly    transfer    the    title    to   the  thmg,  as 
against  all  claims  of   antecedent  property   in   any  one,  if  the 
statutory  provisions  are  strictly  complied   with;    but  that  is  n. 
the  nature  of  a  forfeiture,  and  is  strictly  a  proceeding  in  ran 
wherein  the  finder  of  the  lost  goods  is  constituted  the  tribunal 

of  condemnation,  ,  •  i  i    n 

There  being,  then,  no  ground  upon  which  we  think  we  shall 

be  justilk-d  in  giving  to  a  sheriff's  sale  the   effect  to^o"vey  to 

the  purchaser  any   greater  title  than  that   of   the    debtor,  the 

judgment  of  the  court  below  is  affirmed. 
See  note  to  next  case. 


tlie 
at  ; 
\\a; 
sidi 
tiiii 
toll 

l)ce 

sup 

affi 

(2C 

renr 


§  93.    Rights  of  purchasers  -Purchaser  from  thief. 
HOFFMAN  V.  CAROW. 

[22  Wend.  2S5.] 

Court  of  Errors  of  Nciv  Tork,  iSjg. 

Error  from  the   supreme  court.     Carow    brought   an   action 
of  trover  in  the  superior  court  of  the  city  of  New  York,  against 
Hoffman  &  Company,  auctioneers  in  the  city  of  Baltimore    in 
the  state  of  Maryland,   for  a  quantity   of  merchandise    stolen 
from  the  plaintiff  in  the   city  of  New  York,  and  forwarded  by 
the  thief  to  the  defendants  to  be  sold  at  auction.     The  thief 
was  indicted    and    convicted    of    the  felony  in  May,  1S33,  pre- 
vious  to  which  time  the  goods  had  been  sold    and  the  proceeds 
paid  over  by  the  defendants  to  the  thief,  without   notice  of  the 
felony      The  suit   was    commenced   in  October,  1S34,  against 
the  defendants,  who  moved  for  a  nonsuit  on  the  grounds,  that 
the  proceeds  of  the  goods  having  been  paid  over  to  the  thiet 
previous  to  his  arrest,  and  before   the  defendants  had  notice  of 


KUl'Kll'l'V. 

il.     Tlic  sale 
on   of   law,  of 
I  principle    ot 
Justinian,  (t 
im  ipse  hiibct  • 
'  proods  lost,  or 
which   exist  in 
ill  hold   good. 
I   the  thing,  as 
ny  one,  if  the 
;    but  that  is  in 
ceding  in  rem, 
;d  the  tribunal 

think  we  shall 
;t  to  convey  to 
he    debtor,  the 


tn  thief. 


•39- 

)ught   an   action 
w  York,  against 
of  Baltimore,  in 
rchandise    stolen 
id  forwarded  by 
tion.     The  thief 
May,  1S33,  pre- 
and  the  proceeds 
out   notice  of  the 
ler,  1S34,  against 
the  grounds,  that 
over  to  the  thief 
nts  had  notice  of 


nOKIMAN    V.    CAUOW, 


.T3 


tiie  robbc.-y,  tlic  plaintiff  was  not  entitled  to  recover;  and  that 
at  all  c'viMits,  under  tlie  circumstances  of  the  case,  the  plaintiff 
was  bound  to  prove  a  demand  and  refusal.  The  judge  pre- 
>idiiig  at  the  trial  refused  a  nonsuit,  and  ciiargcd  the  jury  to 
lind  for  the  plaintiff.  The  defindants  excepted.  Tl\e  jury 
toMiid  a  verdict  for  the  phdnliff,  upon  which  judgment  having 
licen  entered  tlie  defendants  removed  the  record  into  the 
supreme  court,  where  the  judgment  of  the  court  below  was 
alVirmcd.  See  the  opinion  delivered  by  the  chief  justice 
(20  Wend.  23).  A  writ  of  error  was  thereupon  sued  out 
removing  the  record  into  this  court. 

Walworth,  Ch. — The  simple  question  presented  for  our 
decision  ii»  this  case  is,  whether  the  purchaser  of  stolen  goods, 
who  afterward  sells  them  as  his  own  to  a  bona  fide  purchaser, 
is  liable  to  the  owner  of  the  goods,  in  an  action  of  trover  for 
>uch  conversion  thereof  to  his  own  use.?  Oiie  of  the  members 
of  this  court,  upon  the  argument,  supposed  the  bare  statement 
of  such  a  case  was  suilicient  to  enable  the  court  to  decide  it 
without  further  argument;  and  I  thought  so  too,  until  one  of 
the  learned  and  very  able  counsel  for  the  plaintiffs  in  error 
assured  us  he  was  sincere  in  believing  the  action  could  not  be 
sustained,  and  referred  to  a  case  from  the  English  Term 
Reports  which  was  apparently  a  decision  in  favor  of  his  clients. 
To  understand  that  case,  therefore,  and  to  distinguish  it  from 
tlie  present,  I  have  found  it  necessary  to  bestow  a  little  more 
time  upon  the  examination  of  this  subject  than  I  should  have 
otherwise  deemed  it  my  duty  to  give  to  it. 

It  is  know  n  to  the  professional  members  of  the  court,  that  in 
tlie  market  towns  in  England  there  are  periodical  fairs,  where 
property  is  bought  and  sold,  called  market  days ;  and  that  by 
the  custom  of  the  city  of  London,  every  day  except  Sunday  is 
a  market  day,  and  every  tradesman's  shop  is  a  market  overt 
for  those  things  in  which  he  usually  deals  at  that  place ;  and 
tliat  by  the  common  law,  a  sale  in  a  market  overt  actually 
changes  the  title  to  the  property  in  favor  of  a  bona  fide  pur- 
chaser thereof,  even  though  it  has  been  stolen  from  the  rightful 
owner.  5  Coke,  833.  The  only  remedy  of  the  owner  of 
stolen  property  to  recover  it  again,  under  such  circumstances, 
at  the  common  lawr,  was  to  pursue  his  appeal  against  the  feloi) 


e^lG       MODF.S  OF  OniAlNlNG  TM  I.K  TO  PF-IlSONAr.  IMtOI'KIt  I  Y. 

to  conviction,   and   then  he  was  entitled  to  restitution   of  his 
goods,  altliongli  they  had  been  sold  in  a  market  overt.      2  Co. 
Inst.    714.     So,    also,    if    goods    were     stolen,    and    the    thief 
iil.andoned  or  waived  them  in  his  fliRht,  they  v%ere  forfeited  to 
tlie  crown,   or  the  lord  of   the  manor,   unless   the  ov.ner  pro- 
ceeded upon  his  appeal  to  attaint  the  thief.     Toxley's  Case,  5 
Coke.  109a.      But  as  this  proceeding  to  convict  the  felon  by  a 
private  suit  was  very  inconvenient  and  expensive  to  the  owner 
of    stolen    property,   the    statute    3i    Hen.   VIII.   c.    11,   was 
enacted,  by  which  the  stolen  goods  were  directed  to  be  restored 
to  the  owner  upon  his  procuring  a  conviction  of  the  thief,  upon 
an  indictment  in  the  ordii:ary  way,  without  the  necessity  of  an 
appeal.     Staunf.  P.  C.    [Ed.  15S3],  p.  167.     Under  this  stat- 
ute, it  is  thJ  settled  law  in  England,  that  upon  the  conviction 
of  the  offender,  the  owner  is  entitled  to  be  restored  to  his  pro])- 
erty,  notwithstanding   it   may   have  been   sold    to    a   bona   fide 
pinchaser  in  a  market  overt,     liurgcss  v.  Coney,  Trem.  P.  C. 
315;   2  Co.  Inst.  714;  J.  Kel.  4S. 

In  the  case  of  Ilorwood  v.  Smith,  2  Term  R.  750,  relied  on 
by  the  counsel  for  the  plaintiffs  in  error  to  show  that  they  could 
not  be  liable  for  a  conversion  of  these  goods  which   took  place 
before  the  conviction  of  the  thief  in  May,  1S33,  there  had  been 
an  actual  sale  of  the  stolen  property   to  Smith,   the  defendant, 
in  a  market  overt.     The    title  of    the   owner    was,   therefore, 
absolutely  divested   by  this    sale,  so    that  Smith,  the  defend- 
ant, could  not  be  guilty  of  a  conversion    as   to  him,  by    after- 
ward selling  the  sheep  to  another  person,  before  the  plaintiffs' 
right  to  the  property  had  been  restored  by  a  conviction  of  the 
f<«lon.     By  a  reference  to  the  opinion  of  Mr.  Justice   Buller  in 
that  case,  it  will  be  seen  that  he   puts   the  decision   upon  that 
ground ;   and  the  language  put  by  the  reporter  into   the    mouth 
of  Lord  Kenyon,  that  the  title  to   the   stolen  property  was  in 
dubio  previous  to  the  sale  to  the  defendant  in  the  market  overt, 
I    shall    presently    show    is    not    considered    as    law,    even    in 
England.     The    case    under    consideration,    therefore,    differs 
from  Ilorwood  v.  Sriiih  in  this:  that  there  had  been  a  sale  in 
market  overt  in  that  case  previous  to   the  alleged  conversion, 
and  the  title  which  Smith  acquired  by  that  sale  was  not  divested 
by  the  subsequent   conviction  until  long  afterward,  which  con- 
viction was  considered  as  giving  the  original  owner  a  new  title 


Di'KH  rv. 


UOI  TMAX    V.    CAUOW, 


5'7 


ution  of  his 
vert.  2  Co. 
ul  the  til  iff 
^  forfeited  to 
owner  pro- 
ley's  Case,  5 
le  felon  by  a 
to  the  owner 
,   c.    II,   was 

0  1)C  restored 
c  thief,  upon 
cessity  of  an 
der  this  stat- 
le  conviction 

1  to  his  proj)- 
a   bona   fide 

Trem.  P.  C. 

750,  relied  on 
lat  they  could 
:h   took  place 
lerc  had  been 
le  defendant, 
as,   therefore, 
,  the  defcnd- 
im,  by    aftcr- 
the  plaintiffs' 
iviction  of  the 
tice   Bnller  in 
on  upon  that 
to  the   mouth 
opcrty  was  in 
market  overt, 
law,    even    in 
refore,    differs 
been  a  sale  in 
;d   conversion, 
as  not  divested 
rd,  which  Con- 
ner a  new  title 


to  the  property ;  whereas,  in  the  present  case,  there  never  Iiad 
been  any  sale  in  a  market  overt,  to  convey  any  title  to  the 
defendants  which  recjuired  to  be  divesled  by  a  conviction. 
Whether  there  are  any  markets  overt  in  Maryland,  where  the 
defendants  purchased  this  property  from  the  tiiief,  1  do  not 
know  ;  but  if  tlu  re  are,  there  w  as  no  attempt  to  [jrove  on  the 
trial  that  they  purchased  the  property  in  a  market  overt ;  and 
tiie  learned  Jud;;e  Hlackstone,  "the  ICnglish  Justinian,"  says, 
ill  so  many  wortls,  that  "if  my  goods  are  stolen  from  me  and 
hold  out  of  market  overt,  my  jjioperty  is  not  altered  and  I  may 
take  them  wherever  I  (liid  them."  2  Ul.  Comm.  449.  See, 
also,  Foxley's  Case,  5  Coke,  109a;  and  Kelh,  Laws  of  William 
the  Conqueror,  73,  law  44. 

The  case  of  i'arker  v.  Patrick,  5  Term  R.  175,  depends 
upon  an  entirely  different  principle.  The  goods  in  that  case 
were  obtained  by  fraud  and  not  by  felony.  The  sale  to  the 
fraudulent  vendee  was,  therefore,  not  void,  but  only  voidable 
iit  the  election  of  the  \endor;  and  as  the  vendee  had  pawned 
tliem  to  an  innocent  person  for  a  valuable  consideration,  the 
])awnee  was  permitted  to  hold  them  as  against  the  owner  who 
had  enabled  the  vendee  to  obtain  property  of  the  defendant, 
upon  the  security  of  property  which  had  apparently  been  sold 
to  the  pawnor,  so  as  to  give  him  the  'egal  title  thcr>'to.  Morcy 
V.  Walsh,  in  our  supreme  court  (S  Cow.  23S),  was  ckv  .led  in 
favor  of  the  bona  fide  purchaser  from  a  fraudulent  vendee, 
upon  the  same  principle;  although  it  will  be  seen  the  chief 
justice  said  in  that  case,  that  in  this  state  where  we  had  no 
markets  overt,  a  sale  of  stolen  goods  would  not  divest  the  title 
of  the  owner.  The  same  distinction  between  the  cases  of 
goods  obtained  by  fraud  and  goods  obtained  by  felony,  is 
noticed  by  Lord  Denman  in  Peer  v.  Humphrey,  i  Har.  &  W. 
j8,  which  is  also  a  direct  authority  in  favor  of  sustaining  the 
judgment  of  the  supreme  court  in  the  present  case.  Indeed, 
it  is  a  case  upon  all  fours  with  this,  and  makes  the  distinction, 
which  I  have  been  endeavoring  to  explain,  between  Horwood 
v.  .Smith,  and  the  case  which  we  are  now  to  decide.  The 
servant  of  the  plaintiff  stole  three  oxen  and  a  heifer  from  him 
;uid  sold  the  three  oxen  to  the  defendant  for  cash,  but  the  sale 
was  not  in  a  market  overt;  the  thief  was  afterward  taken  and 
convicted,  but  before  that   conviction   the  defendant   had  sold 


JlS       MODKS  OK  OIM  AININO  TITI  F-  TO  I'KIISONAI,  I'UUlMiUTY. 

the  cattle  to  other  persons.     After  tlio  conviction   of  tlie  tliicf 
tlie  plaintilf  l.rouKht  liis  action  of  trover  a<,'ainst  the  ilefcndant, 
for  the  previous  conversion,  as  in  tliis   case,  and  recovered   the 
vahie  of  the  cattle,     Ipon  the  case   heinj,'  hrouKht  hefore  the 
court  of  kind's    l-ench.    the   counsel    for    the    defendant    cited 
Ilorwood  V.  Smith,  and  n  ferred  to  what  Lord  Kenyon  said  as 
to  the  property  bein-  in  dul-io  hetween  the  feh.ny  and  the  con- 
viction.    To  which  Lord  C.  J.  Dcnman  replied  "that  must  be 
a  mistake,  or  the  consecpience   of   the   judgment   having'   been 
delivered    liaslily,"   and   in   f,nvin{,'    his    opinion    afterward,   he 
said  that  in  the  case  then   uiuler   consideration   the  property  in 
the  cattle  never  was  divested  out  of  the  true  owner;   but  that  a 
sale   in   market  overt    Rave   a   prima    facie    right  of   i)roperty. 
Justice  Littledale  says,   "as    the    defendant    did  not  purchase 
in  market  overt,  he  acpiircd   no   title    whatever  in   the   cattle; 
that  remained  in   the   plai'Uiff,  and,  therefore,  the  defendant's 
subsequent  sale  of  them,  amounted  to  an  act    of  conversion." 
And  Justice  Williams  said  that  Ilorwood  v.  Smith  merely  laid 
down  that  a  party  by  purchasing  in   market  overt   accpiired   a 
property  in  the  thing  stolen ;  but  as   the   purchase  in  the  case 
they  were  then  considering  was  not  such   a   sale,  no  property 
passed  to  the  defendant  in  point  of  law  and  was  never  divested 
out  of  tlie  plaintiff.     The   verdict,  therefore,  was  directed  to 
stand.     It  appears  by  this  case,  and  also  by  that  of  Gainson  v. 
Woodfull,  2  Car.  &  1'.  41,  that  the  courts  in  England  will  not 
sustain  a  suit  in  favor  of  the  owner  of   the    stolen   property, 
either  a-ainst  the  thief  or  against  a  purchaser   from  him,  until 
he  has  proceeded  criminally  against  the  thief  for  the   felony. 
This  practice  undoubtedly  proceeds  upon  the  ancient  common 
law  principle  that  the  civil  injury  is  merged  in  the  felony;  but 
as  the  Revised  Statutes  of  iSoi,  which   abolished   appeals  of 
felony  in  this  state,  also  declared  that  the  civil  remedy  should 
not  be  merged  in  the  felony,  or  in  any  manner  affected  thereby, 
this   English    rule  does    not   apply    to  suits  commenced  here. 
I  R    L.  iSoi,  p.  2C4.     In  the  present  case,  however,  the  plam- 
tiff  had  convicted  the  thief   before  the   commencement  of  his 
suit.     He  was,  therefore,  entitled  to  recover  according  to  the 
English  practice. 

I  have  no  doubt  that  the  decision  of  the  court  below 
correct;   and  the  judgment  should  be  athrmed. 


•UuriCUTY. 

n   of  tlic  thief 
the  ilcfiiuhiiit, 

lecovcMfd  the 
f,^ht  heforc  the 
L'feii(hiiit  citeil 
<eii)oii  said  as 
IV  and  the  coii- 

"tliat  must  be 
t   having   l)eeti 

afteruard,  he 
he  property  in 
ner;  but  that  a 
it  of  [)roperty. 
.1   not  purchase 

in   the   cattle; 
he  defendant's 
)f  conversion." 
itli  merely  laid 
,ert   acquired   a 
ase  in  the  case 
le,  no  property 
i  never  divested 
was  directed  to 
it  of  Gainson  v. 
England  will  not 
stolen   property, 
from  him,  until 

for  the  felony, 
ncient  common 
the  felony ;  but 
ihcd   appeals  of 

remedy  should 
Affected  thereby, 
jmmcnccd  here. 
,vever,  the  plain- 
encement  of  his 
according  to  the 


ourt  below   \ 


? 


HOtFMAN    V.    CAIIOW. 


5'9 


Senator  EnwAnns. — In  this  case  it  is  clearly  shown  that 
Carow  had  the  title  to  the  property.  This  title  he  rould  not 
be  divested  of,  but  by  his  own  consent  or  by  the  operation  of 
law.  He  did  not  consent  to  part  with  the  property  because  it 
was  stolen  from  him,  and  the  question  is,  has  he  been  divested 
of  it  by  the  operation  of  law  since  the  felony. 

The  salt  of  the   property  at  public  auction   could   not  divest 
tlie    owner  of  his   rights.     No  one  can   transfer  to    another  a 
j^rcator  interest  in  personal  property,  than  he  or  the   principal 
lor  whom  he  acts,  possesses.     This  is  one   of  the  fundamental 
principles  by  which  the  right  to  personal  property  is  tested   in 
lases  of  sale,  and  is  of  great  antiquity.      "-A'cmo  p/iis  juris  in 
aliidii  t  run  afore  potest,  qiiaiti  ipse   'lalxt,"  was  considered   a 
sound   and  salutary  principle  of  the  civil  law   in  France  and 
Scotland,  even  in  the  time  of  Pothier  and  l>skine  ;  and  although 
I'.ngland  has  departed  from  it  in  one  instance  in  the   law  of 
market    overt,  yet  that  law    has  never    been    adopted    in    this 
country,   and    whenever   the    (piestion    has   been  presented   to 
American  judicial  tribunals   it  has  been  repudiated.     Wheel- 
right  V.  De  I'eyster,  i  Johns.  4S0 ;   Dame  v.  Baldwin,  S  Mass. 
518;    I  Yeatcs,  47S;   2  Kent,  Comm.  324.     As  to  the  question 
therefore  under  consideration,  it  is  wholly  immaterial  whether 
the  property  be  sold  at  public  auction   by  an   auctioneer   or  at 
private  sale  by   any  other  individual;  the  owner's  rights  can 
not  be  affected  in  the  one  case  more  than  in  the  other,  nor  can 
the  purchaser  acquire  any  greater  interest  in  the  one  case  than 
in  the  other.     Disposing  of  or  assuming  to  dispose  of  another's 
property  without  his  consent,  unless  by   the   operation  of  law, 
is  a  conversion  for  which  this  action  lies.     Everett  v.  Coffin,  6 
Wend.  609;  4  Maule  &  S.   359;   McCombie  v.  Davis,  6  East, 
53S;   Parker  v.  Godin,  2   Strange,  S13;   Wilbraham  v.  Snow, 
3  Saund.  47  ;   3  Phil.  Ev.  121.     Nor  can  even  a  bona  tide  pur- 
chaser   protect  himself  under  such    a   sale.      The   doctrine   of 
caveat  emptor  applies,  and  he  is  liable  to  the  action  of   trover 
by  the  real  owner,  notwithstanding  his  purchase.     Williams  v. 
Mctlt     ''    Wend.  iSo;   Prescot  v.  De  Forest,  16  Johns.    160. 
A' ere  the  rule  as  contended  for  by  the  counsel  for  the  plaintiffs 
.11  error,  a"  the  felon  wotdd  have  to  do  to  divest  the  owner  of 
the  right       iiis  property,  would  be  to  place   it  in  the  hands  of 
:i'    auctioneer  as  soon  as  stolen,  and  cause  a  sale  to  be  made  of 


520      MODKS  OF  OBTAIMNG  TITLE  TO  PERSONAL  PROPERTY. 

it;   a  rule  of  law  that  would  thus  encourage  felony  and  deprive 
the  owner  of  his  property,  would  be  as  absurd  as  unjust. 

When  property  is  taken  without  legal  authority  or  the  consent 
of  the  owner,  it  is  unnecessary  for  him  to  make  demand  before 
action  brought.  When  he  has  once  consented  to  part  with  the 
possession,  in  some  cases  it  is  necessary  to  make  a  demand  to 
show  a  conversion,  but  when  the  possession  is  wrongfully  taken, 
there  is  a  conversion  and  no  demand  is  necessary. 

The  Revised  Siatutes  have  not  altered  the  nature  of  this 
action  in  a  case  like  the  one  we  are  now  considering,  as  the 
counsel  would  seem  to  suppose  from  his  argument.  The  stat- 
ute is  intended  to  make  provision  relative  to  stolen  property, 
where  it  has  been  arrested  from  the  i'elon,  and  is  in  the  custody 
of  some  l"gal  oflker,  but  does  not  extend  to  a  case  where  the 
felon  has  delivered  the  property  to  an  auctioneer  to  make  sale 
of  it  for  his  benefit.     I  am,  therefore,   for  aflirming  the  judg- 


Senator  Furmax. — No  case  like  the  present  has  ever 
been  dt>.;ded  by  this  court;  and  it  is  of  the  utmost  consequence 
that  an  adjudication,  having  the  important  bearing  that  this 
promises  to  exercise  upon  the  commercial  interests  of  our 
country,  should  not  be  determined  until  after  a  pa'  ent  investi- 
gation of  the  principle  in  all  its  bearings,  and  a  due  examina- 
tion of  the  adjudged  cases  under  which  the  doctrine  is  sought 
to  be  established,  ond  of  the  facts  and  circumstances  under 
which  they  were  decided. 

The  principle  rests  in  the  common  law,  that  a  felon  does  not 
acquire  any  title  to  the  goods  stolen,  that  he  can  not  transfer 
title  even  to  a  bona  fide  purchaser,  and  that  the  owner  may 
take  his  goods  which  have  been  so  stolen  wherever  he  cm  find 
them.  But  it  was  very  early  discovered,  that  the  commercial 
interests  of  the  English  nation  required  *^hat  some  exception 
should  be  made  to  this  general  rule,  an  i  v  was  for  that  purpose 
that  the  courts  in  that  kingdom  held  that  the  principle  did  not 
apply  to  sales  made  in  market  overt ;  and  that  siles  made  under 
such  circumstances  should  convey  a  title  to  the  bona  fide  pur- 
chaser, although  the  property  might  have  been  stolen.  Even 
this  exception  was  not  found  sufiic'ently  broad  to  meet  the 
wants  of  a  trading  communily,  in  which  it  is  absolutely  neces- 


mmmm 


m 


m 


!AL  PROPEUTY. 


HOFFMAN    V.    CAUOW, 


521 


felony  and  deprive 
fd  as  unjust, 
lority  or  the  consent 
ake  demand  before 
ed  to  pari  with  the 
make  a  demand  to 
is  wrongfully  taken, 
•ssary. 

the  nature  of  this 
considering,  as  the 
gumcnt.  The  stat- 
to  stolen  property, 
nd  is  in  the  custody 
)  a  case  where  the 
oncer  to  make  sale 
aflirming  the  judg- 


present  has  ever 
utmost  consequence 
it  bearing  that  this 
al  interests  of  our 
jr  a  pa'  ent  invcsti- 
nd  a  due  examina- 
;  doctrine  is  sought 
lircumstances  under 

hat  a  felon  does  not 
lie  can  not  transfer 
lat  the  owner  may 
•hcrever  he  cm  raid 
hat  the  commercial 
hat  some  exception 
was  for  that  purpose 
the  principle  did  not 
hat  siles  made  under 
3  the  bona  fide  pur- 
been  stolen.  Even 
broad  to  meet  the 
is  absolutely  neccs- 


] 


sarv,  for  the  vvdl  being  of  society,  that   n  bona  fide  purchaser 
should  be  protected  in  his  possession  of  personal  property;  and 
the  exception  was  ctill  further  extended  to  sales  made  in  public 
shops  in  the  city  of  London.     It  is  well  to  remark  here,  that  in 
England  such  markets  overt  are  held,  either  by  prescription  or 
by  charter,  and    in   no  instance   does  the   charter   declare   that 
sales  made  therein  shall   be   conclusive;    but   the   doctrine   has 
arisen  from  the  exigencies  of  trade,  and  has  been  adopted  with 
a  view  to  protect  and   favor   the   commercial    interests   of   that 
country.      But  it  is  said  by  our  courts,   and  with  truth,  that  the 
principle  of  sales  in  market  overt,  as  it  exists   in  England,  has 
no  application  to  this  country.     Although   this  is  admitted,  yet 
I  may  be  allowed  to  express  my  surprise,  that,   with   our  trade 
and  commerce,  we  should  have  no  similar  doctrines  or  princi- 
ples to  protect  it,  but  that,  on  the  contrary,  we  should  seek  to 
establish  a  rule  which  governed  England  in   the   infancy   of  its 
commerce,  which  was  adopted  by  its  courts  at  a  period  when  it 
had  no  manufactures,  and  its  whole  trade    consisted   in  raising 
wool  and  exporting  it  to  Flanders   to   be   wrought   into   cloth, 
and  which  was  repudiated  by  those  courts  at  a  period  when  the 
commercial  relations  of  that  country  were   not  of  one  quarter 
the  importance   or  value   of  those   of  our   own  country  at  the 
present  time.     My  surprise  has  not   been   diminished,   when  I 
lind  that  almost  every  commercial  nation,   ancient  as  well  as 
modern,  beside  our  own,  had  found  it  necessary  to  adopt  some 
such  doctrine.     It  was  wisely  provided  by  the  laws  of  Athens, 
that  all  lawsuits   relating   to   commerce    should   be   carried  on 
in  the  six  months  during  which  ships  were   not   accustomed  to 
put  to  sea,  to  the  end  that  they  might  not  lose  their  voyage  by 
the  impediment  of  legal  prosecutions.     On  the   contrary,  we, 
although  depending  on  foreign  commerce  for  our  prosperity  to 
a  much  greater  extent  than  evtv  the  inhabitants  of  that  ancient 
state  did,  hold  a  mere  commercial  agent  liable  in   :'amages,  at 
any  time  withm  six  years,  for  an  act  honestly  done   r  y  him  in 
the  course  of  bubiness,  and  that  even  without  a  previois  demand 
before  the  suit  is  instituted.      In  thf  Roman  state  Ulpian  speaks 
of  the  great  privileges  granted  by  the  government  to  merchants, 
and  gives  for  it  the  general  reason,  because  navigation  is  of  the 
greatest  service  to  the  state. 


522       MODl-S  OF  onTAIXING  TITLE  TO  PERSONAL  PROPERTY. 


In  England,  the  plaintiff  could  not  recover  merely  because 
the  good's  had  been  stolen,  without  that  fact  having  been  first 
judicially  ascertained.     Hcfore  the  statute  of  the  2  i  Hen.  VIII. , 
the  owner  was  not  entitled  to  a  restitution  of  the  stolen   prop- 
erty, even  upon  the  conviction  of  the  felon  on   indictment,  but 
could  only  obtain  the  same  by  prosecuting  an  appeal.     After 
the  enactment  of  that  statute,  appeals  were  disused,  and  were 
rendered  unnecessary,  because  the  court  might,  on  the  convic 
tion  of  the  felon,  award  restitution;   and  the  courts  are  now  m 
the  habit  of  doing  so.     Our  own  statute  (2  Rev.  Stat.  747,  sec. 
33)  adopts  the  English  statute  on  that  noint.     In  England,  the 
action  under  the  award   of  restitution   can  not  be   maintained 
against  any  one  except  him  who  shall  be   in  possession   at  the 
time  of  the  conviction  or  attainder ;   and  a  demand  is  also  requi- 
site before  the  action  is  brought.     6  Mod.  412.     The  reasonable 
inference  from  this   statute,    and   the    manner    of    proceedmg, 
seems  to  be  that  in  the  case  of  stolen  property,  the  title  of  the 
plaintiff,  so  far,  at  least,  as  to  enable  him  to  maintain  trover, 
is  not  established  before  the  conviction  or  attainder;   at  any 
rate,  he  is  not  before  then  entitled  to  a   restitution   under  the 
statute.     2  Car.  .t  P.  41,  and  note.     It  does  not  appear  from 
this  case  that  the  felon  was  convicted   of   the   felony   charged 
before  this  suit  was  brought;  but  it  does  appear  that  the  pro- 
ceeds  of  the  sale  of  the   goods  in  question  were  paid  over  to 
him  before  he  was  even  arrested.     Our  statute  does  not  author- 
ize the  plaintiff  to  recover  his  goods  from   any  one  who  may  at 
any  time  have  had   the   goods   in   his    possession,    but   merely 
authorizes  a  recovery  in  general  terms.     The   statute   (2  Rev. 
Stat.   747,  sec.  34)  seems  to  recognize  the  principle  that  under 
certain  circumstances,  although  the  property  has  been  stolen,  a 
good  title  may  be  conveyed  by  a  person   not  the   owner,  or  at 
the  least,  a  title  sufficient  to  protect  a  bona  fide  purchaser  from 
an  action  of  trover,  for  that   section   provides,   that  "if  stolen 
property  shall  not  be  claimed  by  the  owner  thereof  before  the 
expiration  of  six  months  from  the  time  any  person  shall  have 
been    convicted    of    stealing   such    property,    the    magistrate, 
sheriff,  constable,  or  other  officer,  or  person  having  the  same 
in  his  custody,  shall  deliver  such  property  to  the  county  super- 
intendents of  the  poor,  on  being  paid  the  reasonable  and  neces- 
sary expenses  incurred  in  the  preservation  thereof,  to  be  appro- 


pri 

me 

Ian 

his 

to 

pn 

Se 
bh 
pr' 
re( 
frc 
pr 
of 
of 
th 

b3 

sh 

fo 
h( 
bi 
tc 
ai 
is 

C( 

r 

c 
it 

r 

c 
c 

1 
i 


3PERTY. 

rely  because 
ig  been  first 
Hen.  VIII., 
stolen   piop- 
lictment,  but 
peal.     After 
d,  and  were 
the  convic- 
are  now  in 
Itat.  747,  sec. 
England,  the 
•   maintained 
sssion   at  the 
is  also  requi- 
le  reasonable 
proceeding, 
e  title  of  the 
intain  trover, 
nder;   at  any 
jn   under  the 
appear  from 
lony   charged 
that  the  pro- 
paid  over  to 
3s  not  author- 
e  who  may  at 
,    but   merely 
itute   (2  Rev. 
pie  that  under 
been  stolen,  a 
owner,  or  at 
uvchaser  from 
hat  "if  stolen 
;of  before  the 
ion  shall  have 
le    magistrate, 
^ing  the  same 
county  super- 
ble  and  neces- 
f,  to  be  appro- 


HOFFMAN    V.    CAROW. 


5-3 


priated  to  the  use  of  the  poor  of  such  county."  This  enact- 
ment is  made  notwithstanding  that  by  the  general  law  of  the 
land,  the  owner  is  entitled  to  six  years  within  which  to  bring 
his  action ;  and  certainly  the  legislature  can  not  be  presumed 
to  have  intended  to  authorize  an  illegal  disposition  of  another's 

property. 

But  there  is  a  stronger  and   more  express  exception   to   this 
general  principle,  which  is  to  be  found  in  the  case  of  negotia- 
ble bills  of  exchange  and  promissory  notes,  where  possession  is 
prima  facie  evidence  of  property,  and   a  bona   fide  holder  can 
recover  upon  the  same,   although   a  bill   or  note  came  to  him 
from  a  person  who  had  stolen    or   robbed   it  from   the  owner, 
provided  the  bona  fide  holder  took  it  innocently  in  the  course 
of  trade  for  a  valuable  consideration,  and  under  circumstances 
of  due  caution.     Suspicion  must  first  be  cast  upon  the  title  of 
the  holder,  by  showing  that  the  paper  had  got  into  circulation 
by  force  or  fraud,   before  the  burden  is  thrown   upon   him  of 
showing  how  he  came  by   it,   and  what  consideration  he  gave 
for  it.      This  protection  is,  for  the  sake  of  trade,  given  to  the 
holder  of  negotiable  paper,  who  receives  it  fairly  in  the  way  of 
business;  and  why  the  same  principle   should  not  be   applied 
to  other  personal  property  which  passes  through  the  hands  of 
an  individual  fairly,  in  the  course  of  trade  and  without  notice, 
is  difficult  to  imagine.     If  Lord  Mansfield,  with  his  clear  and 
comprehensive  mind,  felt  himself  called   upon,    ex   nrccssitatc 
rci,  to  depart  from  the  common  law,  and  to  establish  the  prin- 
ciple above  stated  in  the  case  of  negotiable  commercial  paper, 
it  can  not  for  a  moment  be  doubted,    that  if  the   judges   who 
preceded  him  had  not  deemed  it  necessary  to  protect  the  inno- 
cent bona  fide  purchaser,  by  the   doctrine    of    sales   in   market 
overt,  that  the  great  founder  of  English  commercial  law  would 
have  extended  the  same  pnnciple  to  all  other  property  the  sub- 
ject of  mercantile  transaction. 

It  is  the  boast  of  the  common  law,  that  it  accommodate* 
itself  to  the  growing  wants  of  a  thriving  commer.  :,..l  people;' 
and  it  has  not  been  in  bravado  merely,  that  this  has  been  put 
forth  •  but  in  the  hands  of  the  venerated  sages  of  the  English 
bench,  it  has  been  practically  applied.  What  did  the  age  of 
Ilcnry  VIII,  when  the  "Great  Abridgment  of  the  Statutes  of 
the   Realm"    formed    a    single  volume  but  little  larger  than  a 


524 


MooKs  oi'  outaining  title  to  pkrsonal  property. 


pocket  bible,  know  of  the  law  of  bills  of  exchange  and  promis- 
sory notes,  or  of  the  law  of  insurance  and  shipping?  Nothing. 
All  this,  and  a  thousand  fold  more,  has  been  engrafted  upon 
it  bv  judicial  legislation,  until  it  has  truly  become  the  colleo':ed 
wisdom  of  ages.  "/Az  /ex  scripta  est"  was  not  regarded  by 
those  sages,  as  it  is  too  much  the  case  in  our  day,  a  sullicient 
answer  to  an  argument,  however  cogent,  for  the  establishing  a 
new  principle  arismg  from  the  wants  of  the  community;  but 
with  them  it  advanced  and  expanded  to  meet  those  wants.  A 
tame  subserviency  to  precedent  would  have  prevented  all  the 
improvements  in  that  body  of  law,  which  have  been  the  means 
of  rendering  it  the  admiration  of  the  world;  and  we  have  great 
cause  for  th.-aikfulness,  that  such  was  not  the  course  pursued  in 
the  country  from  which  we  have  derived  our  institutions  as  well 
as  our  law. 

On  the  part  of  the  defendant  in  error,  it  is  contended  that  the 
goods  in  question  having  been  stolen,  the  delivery  conferred  no 
authority  on  on  the  plaintiffs  in  error  to  sell   them  ;   that  such 
sale  was  a  conversion;   and  that  the  payment   of  the   proceeds 
to  the    felon,    although    without    notice    or   knowledge   of   the 
felony,  does  not  discharge  the  plaintiffs  in  error  from  responsi- 
bility to  the  right  owner,  who,  it  is  insisted,  has  a  right  to  reclaim 
}iis  property,  and  to  hold  any  one  responsible  who  has  assumed 
the  right  to  dispose  of  it;   and  that  the  fact  of  the  plaintiffs  in 
error  being  auctioneers  does  not  vary  their  responsibility.     On 
the  argument  of   these    points  a  number   of    authorities  were 
cited;   in  the  examination  of  which  a  short  time  may  not  be 
unprofitably  spent  in  order  to  ascertain  what  were  the  facts  and 
reasons    which    led    to    their  decifiion.     Among   the    cases  on 
which  the  counsel  for  the  defendant   in  error  relies  to  sustain 
the  recovery   against  the  plaintiffs  in  error,  is  that   of  Peer  v. 
Humphrey,   3    Adol.    &   E.  500,    in  which    the  property  was 
stolen   and  sold  to  the  defendani   who  was   a  bona   fide   pur- 
chaser.     Two    days  after    the    sale,    the  plaintiff    having  dis- 
covered his   property   in  the   defendant's  possession  gave  him 
notice  that  it  had  been  stolen  from  hiij.,  and  demanded  posses- 
sion, which  was  refused.     Three  months  after  this  notice  and 
demand,  the  defendant  sold  the  property  in   market  overt  and 
appropriated  the  proceeds  to  his  own  use.     The  thief  was  con- 
victed of  the  felony  on  the  prosecution  of   the  plaintiff;   and 


PERTY. 

md  piomis- 
Notliing. 
rafted  upon 
ic  collcc':eil 
egarded  by 

a  f.utlicieiit 
tablishing  a 
lunity;    hut 

wants.  A 
iited  all  the 
1  the  means 
;  have  great 
:  pursued  in 
ions  as  well 

[led  that  the 
onferred  no 
I ;  that  such 
lie  proceeds 
nlge   of   the 
im  rcsponsi- 
it  to  reclaim 
las  assumed 
plaintiffs  in 
ibility.     On 
orities  were 
may  not  be 
he  facts  and 
le    cases  on 
s  to  sustain 
:  of  Peer  v. 
roperty  was 
la   fide  pur- 
having  dis- 
m  gave  him 
nded  posses- 
>  notice  and 
;t  overt  and 
ief  was  con- 
aintiff;   and 


HOFFMAN    V.    CAUOW. 


-1-> 


afterward,  the  plaintiff  brought  an  action  of  trover  and  recov- 
ered against  the  defendant.  Here  it  will  be  noted  that  the 
property  having  been  sold  by  the  defendant  in  market  overt, 
the  plaintiff  could  not  follow  it  up,  and  could  not  recover  of 
any  other  person  than  the  defendant.  No  one,  however,  would 
feel  much  reluctance  in  sustaining  such  a  judgment,  for  the 
defendant  was  possessed  of  the  property  at  the  time  of  the 
demand,  and  disposed  of  it  three  months  after  he  had  received 
notice  that  it  had  be  n  stolen.  So  if  the  auctioneers  in  this 
case  had  sold  the  goods  of  Carow,  after  they  had  notice  of  the 
felony,  and  after  he  had  demanded  the  goods  from  them,  and 
had  then  paid  over  the  money  to  the  felon,  it  would  be  a 
parallel  case  with  that  cited. 

The  next  case  is  that  of  Stephens  v.  El  wall,  4  Maule  <S:   S. 
259.      That  was  trover.     The  plaintiffs  were  the  assignees  of  a 
bankrupt,  who  being  possessed    of   the   goods  in  question,  sold 
them  after  his   bankruptcy  to  one  Deane,  to  be  paid  by  bills  on 
Heathcote,  who  had  a  house  of  trade  in  London,  and  for  whom 
Deane  bought  the  goods.     Heathcote  was  in  America,  and  the 
defendant  was    his  clerk,    and  conducted   the   business   of  his 
house.     The  goods  were  delivered  to   the  defendant,  who  sent 
them  to  Heathcote  in  America.     A  demand  was  made  on  the 
defendant  before  suit  brought,  but  not  until  after  the  expiration 
of  nearly  two   years  from  the  purchase.     The   defendant  was 
held  liable.     It  is  not  difficult  to  see  that  this  case  rests  mainly 
upon  the   principles   governing  bankruptcy  cases  in  England. 
In    that  case,  Potter  v.  Starkic    (decided   in  England  in  1S07) 
is  cited,  and  is  also  referred  to  by  the  counsel  for  the  defend- 
ant in  error.     There  the  court  held  the   sheriff  liable  in  trover 
although  he  had  seized,  sold,  and  paid  over  the    money  before 
the    commission   of  bankruptcy  issued,   and   before  notice,  but 
after  the  bankrupt  had  committed  the  act  of  bankruptcy.     The 
courts  in  England  have  in  all  these  bankrupt  cases  invariably 
held  the  doctrine,  that  after  an  act  of  bankruptcy,  the  bankrupt 
can  not  by  sale  pass  the  title  to  any  of  his  goods  or  property, 
or  in  anv  way  divert  the  same  from  the   satisfaction  of  his  just 
debts;   and  that  from  that  moment,  the  property  belongs  to  his 
assignees  to  be  appointed  under  the  commission.     This  doctrine 
forms  a  part  of  the  policy  of  the  commercial  law  of  England; 
and  arises   from   the  fostering   and  protecting  care  which  the 


f 


526       MODES  OK  OBTAINING   TITI.K  TO  I'F.RSONAL  PIIOPERTY. 


courts  of  that  nation  cNcrcine  over  their  commercial  interests. 
It  is  basetl  upon  the  same  principles  which  have  induced  the 
courts  to  sustain  the  exception  in  favor  of  sales  in  markets 
overt,  and  the  peculiar  custom  as  to  sales  in  public  shops  in 
the  city  of  London. 

The  case  of  Cooper  v.  Chitty,  i  Burrows,  ^o,  is  i.nothcr  of 
these  bankrupt  cases,  and  was  trover  brought  by  tiie  assignees 
of  Johns,  a  bankrupt,  against  the  sheriffs  of  London,  who  had 
seized  and  sold  goods  in  the  possession  of  the  bankrupt  under 
a  fi.  fa.  The  facts  were  these:  Johns  committed  the  act  of 
bankruptcy  December  4,  1753.  December  S  he  was  declared 
a  bankrupt  and  the  commission  issued;  and  on  the  same  day, 
the  assignment  was  made.  Twenty  days  after,  the  sheriffs 
sold  the  goods  on  a  judgment  recovered  against  Johns  after  the 
act  of  bankruptcy  was  committed.  It  is  diflicult  to  see  what 
question  there  could  be  about  this  case;  and  in  the  decision  of 
it.  Lord  Mansfield  says,  it  is  admitted  that  the  property  was  by 
relation  in  the  plaintiffs  as  and  from  the  fourth  of  December 
(which  was  before  the  seizure  by  the  sheriffs,  and  in  fact 
before  the  judgment  was  recovered),  that  this  relation,  by  the 
statutes  concerning  bankrupts,  was  introduced  to  avoid  frauds. 
And  the  court  held  the  defendants  liable,  on  the  ground  that 
the  conversion  was  twenty  days  after  the  assignment,  and  that 
the  sheriffs  ought  not  to  go  on  to  a  sale  after  a  full  discovery 
that  the  goods  belonged  to  a  third  person.  This  principle  I 
agree  should  be  held  applicable  to  the  cases  of  stolen  property. 
A  party  should  be  held  liable  if  after  a  full  discovery  that  the 
goods  belonged  to  a  third  person  he  proceeds  lO  a  sale;  but 
not  otherwise. 

As  to  these  bankrupt  cases,  it  was  very  early  found  neces- 
sary in  governments  which  authorized  personal  arrest  and 
imprisonment  for  debt,  to  interpose  and  provide  relief  to  the 
debtor  in  cases  of  inevitable  misfortune;  and  this  has  been 
especially  the  case  in  respect  to  insolvent  merchants,  who  are 
obliged  by  the  habits,  the  pursuits,  and  the  enterprising  nature 
of  trade,  to  give  and  receive  credit,  and  to  encounter  extra- 
ordinary hazards.  Thus  we  find  the  cessio  bonorum,  or  cessio 
niiserabilis,  was  established  at  Rome,  by  the  Julian  law;  and 
when  a  person  applied  for  the  benefit  of  that  law,  the  creditors 
had  their  election  either  to  grant  to  the   insolvent  a  letter  of 


IIOPERTY. 

.'ial    interests. 

induced  the 

s  in    markets 

blic  shops  in 

is  iinothcr  of 
the  assignees 
hin,  who  had 
iiiviupt  under 
d  the  act  of 
was  declared 
he  same  day, 
,  the  sheriffs 
)hns  after  the 
It  to  see  what 
le  decision  of 
perty  was  by 
of  December 

and  in  fact 
at  ion,  by  the 
avoid  frauds. 

ground  that 
ent,  and  that 
ill  discovery 
5  principle  I 
len  property, 
very  that  the 
J  a  sale;  but 

Found  neces- 
1  arrest  and 
relief  to  the 
liis  has  been 
nts,  who  are 
rising  nature 
)unter  extra- 
am,  or  cessio 
an  law ;  and 
the  creditors 
t  a  letter  of 


HOFI'MAN    V.    CAIIOW. 


5^7 


license  for  five  years,  or  to  take   a   general   assignment  of  all 
his  property,  on  condition  that  he  should  not  be  imprisoned— a 
provision  creditable    to  the  general   intelP„'ence  of  that  early 
period;   and    one  better  ..a.-pt-l   ♦-  tl.o    exigencies  of  a  com- 
mercial nation  than  the  laws  now  existing  either  in  i:ng!and  or 
this   country.     Bankrupt   and   insolvent    laws    are  designed   to 
secure  the  application  of  the  effects  of  the  debtor  to   the    pay- 
ment of  his  debts,  and  then  to  relieve   him  from  the  weight  of 
them.     Under  these  laws  the  title  of  the  bankrupt  to   the  rem- 
nants of  his  property,  becomes  absolutely  vested  in  the  assign- 
ees.    These   la\NS  are   in  the  nature  of  a  contract  between   the 
government  and  the  mercantile  portion  of  the  community,  that 
if.  in  the  event  of  misfortune,  they  will  surrender  all  their  prop- 
erty and  effects  to  the  s.itisfaction  of  their  creditors,  the  govern- 
ment will  discharge  them   from   the   penalty  consequent   upon 
their  failure  to   meet   their  engagements,  and  it  is  the  duty  of 
the  courts  to  see  that  it  is  rigidly  complied  with  on  the  part  of 
the  bankrupt  debtor.     But  the  principles  which   the   courts  in 
England  have  found  it  necessary  to  adopt,  in  order  to  oblige  a 
bona  tide  application  of  all  the  effects  of   the  bankrupt  to  that 
object,  can  not   reasonably  be   extended  beyond   that  class   of 
cases, '  for   the    purpose    of  deciding  others   which   rest    upon 
different  principles. 

Having    thus    gone   through    with    an    examination    of    the 
English  cases   cited   and    relied   upon  by   the    counsel   for  the 
defendant  in  error,  to   sustain  the  judgment  below,  it  is  seen 
that  in  all  of  them  arc  to  be  found  facts  which  induce  us  to 
yield  our  assent  to  their  decision.     In  each   of  them   we  dis- 
cover that  notice  of  the  state  of  the  case  was  brought  home  to 
the  defendant  while  he  remained  in  the  possession  of  the  prop- 
erty in  dispute ;   and  in  all  of  them  we  find  that  a  demand  was 
made  before  suit  brought.     Among  those  cases,  three  of  them, 
viz.,  that  of  4  Maule  &  S.  259,  that  of  Potter  v.  Starkie  (also 
cited  in  that  volume),  and  that  of   i  Burrows,   20,  are  cases 
decided  upon  the  peculiar  principles  which   <,'overn  the  bank- 
rupt laws  of  England ;   and  there   is  but  one   case,  that  of  2 
Adol.  &  E.  500,  which  is  similar  to  that   in  question,  and  the 
facts  which  it  appears   it  was  deemed    necessary  to  prove  in 
that  case  to  warrant  a  recovery,  go  far  to   sustain  some  of  the 
objections  taken  here  by  the  plaintiffs  in  error  against  this  judg- 


5iS       MODKS  l)K  OllTAlNINO  TH  LK  TO  PKRSONAL  PROPERTY. 


mcnt,  TIic  result  is,  that  T  do  not  find  that  any  of  tliosc  cases 
carry  tlic  doctrine  soii<j;lit  to  lie  enforced  l)y  the  defendant  in 
error  to  the  extent  to  which  it  has  been  carried  by  the  decision 
of  the  supreme  court  in  the  present  case.  It  is  now  necessary 
to  make  a  similar  examination  of  the  cases  in  our  own  courts 
in  order  to  see  in  what  lij;ht  they  view  this  principle  deducihle 
from  the  common  law. 

The  llrst  of  our  own  decisions  by  the    supreme    court,  cited 
by  the  counsel   in  .support  of    the  doctrine   laid    down   by   the 
court  in  this  case,  is  that   of  Everett  v.  Coflin,  6  Wend.  603. 
The  facts  in  that  case  were,  that  Collins,  the  master  of  the  brig 
Dove,    at  New  Orleans,  sitjned  a  bill   of  lading   that  IJridge  iS: 
Vosc  had  shipped  in  her  for  New  York,  17^  pigs  of  lead,  to  be 
delivered  to  Tufts,  Eveleth  &  Burrell,  or  their  assij^ns,  on  pav- 
ing freii^ht.     A   letter  was   in   evidence,   showing   that   it   was 
shipped  on  account  and  risk  of  Otis  Everett,  of   Boston.      The 
brig  arrived  in  distress   at  Norfolk,  a  portion  of  the  lead   was 
sold  to  pay  expenses,  and  the  balance   was  transferred   to  the 
schooner  Dusty  Miller,   for  New  York,   a  bill  of  lading   was 
taken  to  deliver  the  property  to  Captain  Collins  (which  was 
undoubtedly  with  a  view  to  secure  the  freight  and  expenses), 
and  the  captain  of  the  schooner,  by  order  of  Collins,  delivered 
tlic  same  to   the  defendants.     Tufts,  one   of  the  original   con- 
signees, called  on  the  defendants,  who   showed   him  the  bill  of 
lading  from  Norfolk,  made  to  Collins,  and  indorsed  by  him  to 
the  defendants,  and  told  him  that  the  lead   had   come  to  hand, 
and  had  been  sold  and  the  money  received  ;   that  the   contract 
of  sale  was  made  by  Collins;   that  the  defendants  had  become 
responsible    for    the   freight    and   average    and  had    advanced 
money  to  Collins.     It  does  not  appear  from  the  case,  that  they 
had    ever  accounted  with  Collins    and  paid    over  to  him    the 
balance  after  satisfying  their  responsibilities  and  claim  ;  but  the 
inference  is,  that  they  had  the  whole  proceeds  of  the  sale  then 
in  their  possession,  or  had  appropriated  the  same  to  their  own 
use.     The    circuit  judge   nonsuited    the   plaintiff.     The   ques- 
tions argued  by  the  counsel  in  the  supreme  court  were,  whether 
the  plaintiff  had  sulHciently  proved  his  right  to  the  propeity  to 
maintain   the   action;   and,  whether  the  defendants   had  a  lieu 
upon  the  same,  and  could  retain  it  for  the   satisfaction   of  that 
lien.      The  court,  by  Justice  Sutherland,  in  deciding  the  case,. 


iPERTV. 

tliosc  cases 
efciulant  in 
the  decision 
V  necessary 
own  courts 
e  (leducihje 

court,  cited 
)\vn  by  the 
^Vciul.  603, 
•  of  the  hv'tg 
it  IJridge  Sc 

lead,  to  1ie 
[lis,  on  pay- 
that  it  was 
)ston.  The 
16  lead  was 
rred  to  the 
lading  Wiis 
(whicli  was 
!  expenses), 
is,  delivered 
rifjinal  con- 
1  the  hill  of 
d  by  him  ta 
me  to  hand, 
:he  contract 
lad  become 
d  advanced 
3e,  that  they 
to  him  the 
lim  ;  but  the 
he  sale  then 
to  their  own 

The  ques- 
ere,  whether 

propeity  to 
s  had  a  lien 
tion  of  that 
ig  the  case,. 


HOFFMAN    V.    CAROW. 


5-9 


held,  that  the  evidence  of  the  right,  and  the  demand  and 
refusal  was  sufficient ;  that  Tufts,  one  of  the  original  consign- 
ees, had  full  legal  authority  to  do  all  that  he  did  ;  and  also, 
tliat  the  defendants  had  a  lien  on  the  property,  which  should 
have  been  paid  or  tendered  before  the  suit  was  commenced; 
that  the  plaintiif's  right  of  action  was  not  complete  until  the 
lien  was  satisfied;  and  the  court  conclude  by  deciding  that 
the  plaintiff  was  properly  nonsuited.  This,  in  fact,  decides 
the  whole  case,  and  every  question  that  could  be  properly 
raised,  or  was  raised,  as  appears  from  the  report. 

There  is  no  pretense  that  the  property  was  feloniously  taken 
from  the  plaintiff,  for  there  is  no  principle  better  settled  than 
that  without  an  express  agreement,  the  master  of  a  ship  is  not 
bound  to  part  with  the  goods  until  the  freight  be  paid ;  and  if 
the  regulations  of  the  revenue  rcc[uire  the  goods  to  be  landed 
and  deposited  in  a  public  warehouse,  the  master  may  enter 
them  in  his  own  name,  and  thus  preserve  his  own  or  his  owner's 
lien.  In  that  case  the  defendants,  by  the  assignment  of  the 
last  bill  of  lading,  stood  in  the  place  of  the  master;  and  the 
same  rule  also  applies  to  the  average  on  the  loss.  The  court, 
however,  proceed  to  lay  down  some  general  principles,  which 
they  were  not  necessarily  called  upon  to  do  by  any  of  the  facts 
or  circumstances  in  that  case,  as  they  appear  by  the  report  of 
it;  and  they  say  that  "the  disposing  or  assuming  to  dispose  of 
another  man's  goods,  without  his  authority,  is  the  gist  of  this 
action ;  and  it  is  no  answer  for  the  defendants  that  they  acted 
under  instructions  from  another,  who  had  himself  no  authority" — 
and  cite  in  support  of  that  position  the  cases  of  4  Maule  &. 
S.  259,  and  1  Burrows,  20,  which  have  been  before  examined 
and  the  bearing  of  them  shown.  There  is  no  doubt  that  the 
law  as  laid  down  by  the  supreme  court,  as  to  disposing  of  the 
goods  or  property  of  another,  without  authority,  is  correct; 
but  in  that  case  the  defendants  had  authority  to  hold  possession 
of  the  property  under  a  lien.  It  is,  however,  but  a  general 
principle;  and  like  all  other  general  rules  or  principles  has 
exceptions,  which  I  have  before  adverted  to.  Every  case 
attempted  to  be  brought  under  it  must  depend  upon  its  own 
peculiar  state  of  facts  as  the  same  came  out  in  proof,  to  ascer- 
tain whether  it  belongs   to   the   rule,   or  attaches  to  one  of  the 

34 


!■■£! 


530     Monr.s  or  onTA.N.NO  t.ti.k  to  peksunai.  Pnor-Emv. 

exceptions.     That  dictum,  however,  which  is  incidentally  nnen- 
Uonod  in  t.>e  con,-.e  of  the  opinion  of  the  court,  -.ether  w.th 
s.milar  one  in  S  Cow.  2,vS,  which  was  .n  a  ease  of  fraud    a 
n  t  of  felonv,  seem  to  have  formed  the  bas.s  of    he  -^--  - 

isions  of- that  tribunal.      And  the  next  sncccedn..  case  ,s 
first  one  that  applies  that  principle  n.  its  broadest  sense  to  the 

'"^:  WmUmH.  Merle,  u  Wen.l.   So,   the  facts  were  these: 
N     embe;  r.S.„  the  master  of  a  tow-boat,  ^^^^^^/^ 
four  barrels  of  potashes  from  a  warehouse  u.  A  bany,     nd  d  s 
covering  his  mistake  when  in  New   ^'orl<,   dehvered   them   to 
t         S  of  the  agents  of  his  principals,    who   took  them  to  an 
pec'or's  office  on  the  third  of  November  foUowm,,  obta.ned 
c  Uncate  of  inspection,  and  on  the  sixth  of  the  same  month 
so  11    m  to  the  defendant,  a  produce  broker,  who  purchas  d 
h  m    or  a  Mr.  Patterson,    at    a   ta,r   price,   and  rece.ved  the 
n  pector's  certilicate.     On  the  tenth  of  November  the  defend- 
"uto  k  the  ashes  from  the  inspector's  office,  and  sh.pped  them 
:        order  of  his  principal.     About  the  first  of  September,  ,n 
he  following  year,   the   plaintiffs  demanded   the   ashes  of  the 
:^J:iant,  ;ii  refused  to   account  for   them,  ^y^  ^^ 

purchased  and  paid  for   them    a   y--'    P'?-^''?^.  ^^'^^  ^"^",t 
The  circuit  iudge,  Edwards,  intimated   h.s  opm.on  that  .f  the 
In  la      hid  aVired  the  property  bona  fide  by  P"-''--  - 
.  e  re-ndar  course  of  his  business  as  a  produce  broker,  and  had 
d    posted  of  the  same  bona  fide,  pursuant  to  the  n.struct,ons  o£ 
h     principal,  before   suit  brought,   the  action   won  d  not  be. 
He 'howeve  .refused  to   nonsuit  the  plaintiffs    and  the  ^-y, 
"e    his  dir;ction,  found   a   verdict   for   the  P'-^-ff.     or     - 
v-Uue  of  the  ashes,  and  interest.     The  case  was  brought  to  the 
u     erne  court  for  revision;    and   that  court,    in  follow.ngup 
the  general    principles   mentioned    in    the    cases  of  Mowty  v 
Wafsh      ndofEvlrett  v.   Coffin,    decided   that   the  defendan 
'I      able,  and  that  the  owner  of  property  can  not  be  d.ves  ed 
of   t  but  by  his  own  consent,  or  by  operation  of  law,  and  that 
the  pu    ha'er  acquired  no  title.     The  circuit  judge  took  such  a 
vi  w  of  the  facts  and  of  the  legal  principles   wh.ch    should  be 
I   led  to  them,  as  seems  to  commend   itself  to  our  comn^on 
sT     of  U-tice;    and    such    an  one  as  the  eqxuty  of   the  ca  e 
;       d  seem  to  require-which  was  to   leave   the  plau.t.ffs   to 


>PEm  Y. 


IIOKI.MAN     V.    CAKOW, 


5.>' 


jntallv  men- 
;thcr  with  a 
[  fraud,  and 
siibseci'icnt 
g  case  is  tlie 
sense  to  the 

were  these: 
istake,  took 
iiy,  aiul  dis- 
•ed  them  to 
;  them  to  an 
ng,  obtained 

same  month 
lo  purchased 
received  the 
•,  the  dciend- 
shipped  them 
September,  in 

ashes  of  the 
ying  he  had 
the  demand. 
)n  that  if  the 

purchase,  in 
okcr,  and  had 
nstructions  of 
,ouUl  not  lie. 
and  the  jury, 
intiffs  for  the 
brought  to  the 
I  following  up 

of  Mowry  v. 
the  defendant 
ot  be  divested 
law,  and  that 
Igc  took  such  a 
lich  should  be 
)  our  common 
ity  of  the  case 
le  plaintiffs   to 


tlicir  remedy  againat  those  wiio  actually  converted  and  sold 
(licir  proi)iMty,  and  had  appropriated  the  proceeds  to  their  own 
use;  hut  not  allow  tiiem  to  sustain  an  acti(Ji)  against  an  inno- 
cent party  wiio  was  ovily  the  agent  for  the  purpose  of  transmit- 
ting the  propiMv  from  the  hands  of  those  ulio  had  so  converted 
it  to  tliose  of  a  third  person.  Not  tiiat  there  was  any  doulit 
about  the  general  rule  of  law,  as  laid  down  l)y  the  court  in 
reviewing  the  case  ;  but  because  the  defendant  was  in  a  busi- 
ness well  known  to  the  commercial  community  as  an  agent,  a 
produce  broker,  transacting  that  business  bona  fide;  and 
because  the  great  and  important  interests  of  the  community 
required  that  tliose  men  sliould  not  be  rendered  liable  in  dam- 
ages for  acts  done  by  tiiein  without  the  intent  of  committing  a 
violation  of  law.  The  reasonable  presumption  would  be  that 
if  such  a  doctrine  should  be  sanctioned  by  the  higher  courts, 
and  thus  becoine  the  settled  law  of  the  land,  these  agencies 
would  be  broken  up,  to  the  great  annoyance  and  expense,  as 
well  of  the  merchants  as  of  the  planters;  thus  affecting  not 
only  the  commerce  but  the  agriculture  of  the  country;  or  at 
tiie  least  be  the  cause  of  creating  very  serious  impediments  in 
tile  way  of  the  transaction  of  that  business  which  has  been  for 
several  years  past  peculiarly  appropriated  by  that  class  of  men; 
and  which  constitutes  a  very  large  amount  of  the  whole  busi- 
ness of  the  country.  The  only  ground  upon  which  a  party 
should  be  held  liable  is  that  he  has  the  property  or  its  value  in 
his  possession,  or  has  with  knowledge  or  under  notice,  illegally 
disposed  of  it;  and  not  by  reason  of  having  been  the  mere 
conduit  for  its  transmission  from  one  to  another,  and  that  with- 
out notice  or  knowledge  of  any  claim  having  beon  set  up  to  the 
property  by  a  third  person.  I  am  inclined  to  think  there  is  a 
slight  mistake  in  the  case  as  reported  in  relation  to  the  doctrine 
held  by  the  circuit  judge;  in  which  he  is  made  to  intimate  that 
if  the  defendant  had,  in  addition  to  the  other  circumstances  by 
him  stated,  "disposed  of  the  property  bona  fide,  pursuant  to 
the  instructions  of  his  principal  before  suit  brought,  the  action 
would  not  lie;"  and  that  he  intended  to  have  been  understood 
as  intimating  that  if  the  defendant  had  in  addition  to  those 
other  circumstances,  disposed  of  the  property  bona  fide,  pur- 
suant to  the  instructions  of  his  principal  before  notice,  or  demand 
made,  the  action  would  not  lie.     That  would  make  the  doctrine 


53^       MODKS  OK  OIVIAIMNG   TITI-K  TO  I-EUSOXAI.  IMIOI'KIITY. 

conform  to  that  dediiciblc  from  thv  Kntjiish  cases,  and  to  what 
I  believe  to  have  liceu  tlif  law  in  lliis  state  liefore  tlie  case  of 
Mowry  v.  Walsh,  S  Cow.  23S,  which  was  decided  in  1S2S, 
nlthou^'h  I  can  not  see  tliat  the  decision  of  that  case,  viewed  in 
a  proper  light,  niiiitales  ajjjainst  that  rule. 

This  disposes  of  liie  adjud^'ed  cases  cited  on  the  arputncnt  of 
this  cause.     Tiiere  are.  however,  two  cases  referred  to  hy  the 
learned  chief  justice  in  deliveriuf,'  the  opinion  of  the    supreine 
court,   which   should    here   be    noticed.     The    first    is    tliat    of 
Mowry   v.    Walsh,    above    mentioned.       There    goods    were 
obtained  from  the  plaintiffs  by  means  of  a  forged  recommenda- 
tion, and  a  promise  to  pay  whatever  amount  the  plaintiffs  might 
let  him  have.     After  thus  obtaining  the  goods,  the  party  obtain- 
ing the  goods  took  them  to  Lansingburgh  and  sold  them  to  the 
defendant  for  considerable  less  than  the  prices  which  had  bccu 
charged  him  by  the  plaintiffs  at  the  factory.      Tiie  deftudanfs 
clerk,  however,  testified  that  the   price   paid   was   a   fair  one. 
The  plaintiffs  aftcrsvard  demanded  the  goods,  and  the  defend- 
ant refused   to   surrender  them,  and    an    action  of   trover  was 
brought.      The  circuit  judge  held  that  the  goods  were  obtained 
fraudulently,    but   not  feloniously,   and   the   defendant  having 
bought  them  bona  fide  without  notice  of  the  fraud,  the  plaintiffs 
could  not  recover;    and  a  verdict  was  rendered  for  the  defend- 
ant.    The  case  was  brought  before  the  supreme  court  and  that 
court  supported  the  decision  of  the  circuit  judge,  and  held  that 
it  was  a  case  of  fraud,  and  not  of  felony   or  larceny,  and  that 
the  finding  of  the  jury  and   the   testimony  established  the  fact 
that  the  defendant  purchased  withe  ut  notice  of  the  fraud  ;    that 
although  as  between  the  original    parties   to   the    contract,   the 
sale  was  void  in  consequence  of  the  fraud,   yet  if   that  original 
fraudulent  purcliascr  afterward  sold  the  goods   to   a  bona  fide 
purchaser  without  notice  of  the  fraud,  the  property  passed,  and 
the  court  would  protect  him  in  the  possession  thereof.     Although 
this  decides  the  whole  case  which  was  brought  up  for  examina- 
tion, the  court  also  lay  down  the  general   principles  of  law  as 
applicable  to  cases  of  stolen  property — that  if  the  goods  were 
taken  feloniously   no    title    passed    from    the  owners   and  they 
might  pursue  and   take   their   property   wherever   found;    that 
such  is  the  law   in  England  unless  the  goods  are  sold  fairly  in 
market  overt,  and  that  having  no  such  market  here,  the  sale  can 


: 


KIITY. 

n\  to  what 
t>  case  of 
(1  ill  1S2S, 
viewed  ill 

•{TlllUCIlt  of 

to  by  the 
^    supicme 
is    tliat    of 
)ods    were 
ommeiuhi- 
itiffs  nii<j;iit 
rty  obtain- 
hem  to  the 
1  had  been 
cftiidaiit's 
1   fair  one. 
;he  defeiul- 
trover  was 
re  obtained 
ant  having 
le  plaintiffs 
the  dcfend- 
irt  and  that 
id  held  that 
ly,  and  that 
led  the  fact 
raud ;     that 
sntract,   the 
lat  original 
a  bona  fide 
passed,  and 
Although 
or  examina- 
;  of  law  as 
goods  were 
rs  and  they 
found;    that 
old  fairly  in 
,  the  sale  can 


HOl'K.M  AN    V.    CAIIOW. 


533 


liave  no  otliiT  effect  than  mere  private  sales  in  England.  In 
deciding  tiie  case  last  mentioned,  the  supreme  court  citeil  that 
of  Parker  v.  Patrick,  5  Term  K.  71S,  as  being  in  favor  of  tlie 
defendant;  which  is  the  same  case  cited  by  the  cnuiisel  for  the 
plaintiffs  in  error  on  the  argument  of  the  (luestioii.  In  Parker 
V.  Patrick,  the  goods  had  l)een  fiaiidiilently  olitained  of  tiie 
defendant  and  jiawned  to  the  plaintiff  for  a  valual)lc  considera- 
tion, without  notice  of  the  fraud.  After  the  conviction  of  the 
offender,  the  detendant  obtained  possession  of  his  goods,  but 
by  what  means  does  not  appear.  The  plaintiff  brougiit  an 
action  for  their  recovery,  and  it  was  contended  that  he,  although 
an  innocent  pawnee,  could  not  recover,  as  he  derived  title 
tin-ough  a  fraud,  and  was  like  a  person  deriving  title  from  a 
felon.  But  Lord  Kenyon  thought  the  cases  distinguishable, 
and  the  plaintiff  had  a  verdict.  A  motion  to  set  aside  the  ver- 
dict was  denied,  and  the  court  held  that  the  statute  of  21  lien. 
\TII,  c.  31,  did  not  extend  to  cases  of  fraud,  but  only  to  a 
felonious  taking,  liy  that  statute  the  owner  of  stolen  property 
was  entitled  to  restitution  upon  the  conviction  of  the  felon. 
15ut  as  that  statute  did  not  apply  to  a  fraudulent  obtaining  of 
goods,  the  owner  was  not  entitled  to  restitution — and  the  ques- 
tion was  then,  say  our  supreme  court  in  commenting  upon  that 
case,  purely  at  common  law,  and  the  innocent  pawnee  was 
allowed  to  recover  against  the  owner.  Although  in  the  state- 
ment of  that  case  it  is  said  that  it  does  not  appear  by  what 
means  the  defendant  obtained  possession  of  the  goods,  yet  I 
think  it  is  evident  from  the  opinion  of  the  court  that  the  offender 
was  prosecuted  for  the  fraud  and  convicted  ;  and  that  thereupon 
the  court  before  whom  he  was  tried,  awarded  restitution  to  the 
owner,  and  this  view  of  the  case  becomes  the  more  important 
because  the  main  question  to  which  the  attention  of  the  king's 
bench  seems  to  have  been  called,  was  whether  the  statute  of  21 
Hen.  VIII.  extended  to  the  case  of  goods  ol)tained  by  fraud,  so 
that  restitution  might  be  awarded  to  the  owner  upon  conviction  ; 
for  if  it  did  not,  then  the  defendant  had  no  right  to  the  posses- 
sion, and  it  was  still  in  the  plaintiff  to  whom  they  had  been 
pawned.  For  this  reason  it  appears  to  me  that  the  case  is  of 
little  weight  in  settling  the  question  on  either  side. 

It  is  insisted  by  the  plaintiffs  in  error  that  the  same  principles 
should  apply  equally  to  the  cases  of  property  obtained  by  fraud 


534 


MOnrS  OF  OBTAINING  TITLE  TO  PERSONAL  PROrERTY. 


or  felony,  so  far  as  innocent  parties  are  concerned,  and  that  the 
statute  merjrins  the    civil   action    in   the   felony  only  applies  as 
between  the  felon  and  the  original  owner  of  the  prop  jrty,  and 
not  to  third  persons.      The  courts,  however,   in  England  and  in 
this  country,  have  thought  they  saw  some  reason.  Me  distinction 
between  those    cases;     and    that   the    doctrine    relating   to    the 
fraudulent  acquisition   of  property  was    not   applicable   to  the 
felonious  taking  of  it.      But  recently,    in   the   English    court  of 
common  pleas,  in  the  case  of  Samplin  v.   Addy,   Chief  Justice 
Best    virtually    held    that    no    such    distinction    existed.     Our 
supreme  court  in  adverting  to  that  case  in  Mowry  v.  Walsh,   S 
Cow.  HO,  think  the  opinion  of  Chief  Justice  Best  "certainly  at 
variance  with  the  settled  principles   of   law."      This   shows  at 
least  that  there  is  a  difference  of  opinion  among  sound  lawyers 
on  that  point;   and  I  must  confess  that  it  appears  to   my  mind 
very  dinicult  to  draw  a  satisfactory  distinction  between  the  two 
cases;  either  the  original  owner  should  be  entitled  to  his  prop- 
erty in  both,  or  an  innocent  vendee  cr  p..  ty  should  be  protected 
as  well  in  the  one  instance  as  the  other. 

The  other  case  cited  by  the  chief  justice  is  that  ot  Andrew  v. 
Dicterich,  14  Wend.  33,  decided  in  1S35  ;  and  is  the  first  case 
in  which  the  question  as  to  the  felonious  acquisition  of  property 
came  directly  before  the  court.     It  was  an  action   of   replevin. 
The  facts  were  that  one  Simmons  purchased  of  the  plaintiff  a 
quantity  of  carpeting,  for  which  he  was  to  pay  cash  as  soon  as 
it  was  measured  and  the  quantity  ascertained :    it  was   sent  to 
him;   after  which,    instead    of   paying   for   it,   he   absconded. 
Previous  to  absconding,  he  applied  to  the   defendant  who  was 
an  auctioneer  of  household  furniture  to   sell   his   furniture,  and 
obtained  on  ii  an  advance  of  three  hundred   and  fifty   dollars, 
and  gave  the  key  of  his  house  to  the  defendant.      After  the  car- 
peting had  been  three   weeks    on    the    floor  of  the   house   the 
defendant  removed  it  and  the  other  things  to  his  auction  room. 
The  plaintiff  demanded  it,  and  the  defendant  refused  to  deliver 
it  up  unless  his  lien  was  discharged,  upon  which   the  suit  was 
brought.     Justice  O  kley,   of  the  superior  court,    on  the  trial, 
charged  the  jury  that  the  defendant  was  entitled  t"  a  verdict  if 
they  found  there  had  been  a  complete  delivery  of  the  property 
by  the   plaintiff  to   Simmons;    and   that  when  the   defendant 
made  the  advance  and  took  possession  of  it  by  way  of  pledge 


PROPERTY. 


HOFFMAN    V.    CAROW. 


535 


d,  and  that  the 
orily  applies  as 

prop  ;rty,  and 
i^ngland  and  in 
.  Me  distinction 
•elating  to  the 
plicable  to  the 
iglish    court  of 

Chief  Justice 

existed.  Our 
■y  V.  Walsh,  8 
st  "certainly  at 
This   shows  at 

sound  lawyers 
irs  to  my  mind 
etween  the  two 
led  to  his  prop- 
Lild  be  protected 

at  ot  Andrew  v. 
is  the  first  case 
tion  of  property 
on   of   replevin. 
:  the  plaintiff  a 
cash  as  soon  as 
it  was  sent  to 
he   absconded, 
endant  who  was 
s   furniture,  and 
id  fifty   dollars, 
After  the  car- 
f  the  house   the 
is  auction  room, 
efused  to  deliver 
ch   the  suit  was 
irt,    on  the  trial, 
ed  to  a  verdict  if 
of  the  proi^orty 
[1  the   defendant 
y  way  of  pledge 


he  was  ignorant  of  any  circumstances  which  ought  to  have  put 
liim  on  his  guard   as  to  ithe    manner    in    which    Simmons  had 
(obtained  it  from  the  plaintiff ;    and   that  if  they  found   such  a 
delivery  by  the  plaintiff   to  Simmons,    the    plaintiff    could  not 
recover  on  the  ground  that  the   property   had  been   feloniously 
obtained.      The  jury  found  for  the  defendant.      By  this  charge 
the  law  was  given  to  the  jury,   and   they  passed  upon  it,   as  it 
liad  been   understood    to    have    been    settled    by    the    previous 
decisions.     But  the  cause  having  been  brought  to  the  supreme 
court  on  exceptions   taken    to    the    judge's  charge,    that   court 
reversed    the    j'"lgment    on    the    ground  that  the  goods  were 
obtained  unucr  false    pretenses,    which    was    made  felony  by 
statute.     This  was  one  of  the  first  cases  decided  under  that  law 
for  converting  civil   reaiedies   into   criminal   prosecutions,  the 
(.ffect  of  which  was  to  convict  a  man  of  a  felony  in  the  eye  of 
the  world  in  a  civil  action,  to  which  he  was   not  a  party,   and 
where  he  had   no   opportunity   of    making  his  defense.     The 
extension  of  this  questionable  policy  so  much  at  variance  with 
the  common  law  which  holds  eve       man  innocent  until  legally 
convicted,  shows  the  necessity  of  co.ning  back  to  the  principle 
of  the  English  courts,   and    of    requiring   a    conviction    of   the 
offender  before  the  prosecution  of  these  civil  remedies  should 
be  permitted,  much  ic.-s  encouraged.     In  giving  their  opinion 
the  supreme  court  to  some  extent  atfirm  the  law  as  it  was  before 
held,  and  say  that  "a  fraudulent  purchaser  acquires  no  title  as 
against  the  seller,  but  as  possession  is  prima  facie  evidence  of 
property,    where   the   vendor  has   delivered   possession   of  his 
goods  with  intent,  not  only  that  the  possession,  but  the  property 
shall  pass,  a  bona  fide  purchaser  from  a  fraudulent  vendee  shall 
hold  the  goods  in  preference  to  the  owner."      With  all  due  defer- 
ence to  the  opinion  of  the  able  judges  of  that  court,  I  have  under- 
stood the  law  to  be  a  little  different  from  that  by  them  stated  ;  that 
lis  between  the  original  owner  of  the  goods  and  a  subsequent 
bona  fide  purchaser  from  a  fraudulent  vendee  it  is  not  made  a 
(juestion  whether  the  owner  delivered  the  goods  with  the  intent 
that  the  possession  or  the   property   should  pass;    and  that  in 
cises  where  the  delivery  was  merely  conditional  as  between  the 
original  parties  to  the  contract,  as  where  the  payment  is  to  be 
made  simultaneously  with  the  delivery,  but  is  omitted  or  evaded 
by  the  purchaser  on  obtaining  the  delivery  of  the  goods,  although 


lai 


536      MO„F,S  OF  0,nA,N.NU  T,  ...E  TO  ^..SONAL  PROPERTV. 

vcnilcc,  .t  IS  not  so;  to    .!  tl  i  o«  ,        ,„,  ,,  ^laim  tl.e 

p„s,c.s,io„  .o  *= ;-'  -^,;=  ;  If:  ;::;,t  bo,.  ru,c  ,.„. 

{roods  to  the  prejudice  ot  tne  i  it,"is  "  i  . 

c-sc.  o,  ccauo.  on,.  ^;--.  :',rLVo::sr;:;uy 

of  innocent  persons  must  suuer,  ui^         _       i 

"7„r.rrroi:rcT:r:i::'ror :  .s  o„.„.  o,  a.„„,e 
.„^:,;:r:Fo..o..o.u,„.o.u.»™e»^^^^^ 

erty.     It  is  true  he  has  a  special  inttiest         y  chirsres 

''\«r'tor:':^t:;*^'::aTirj:,:ut:ci^:«ce,,= 

""'  Z^o  eU  ,■  oTgh  .0  be  held  responsible  to  the  rc»l 
proceeded  to  sell,  he  oug  ^_^^^__j  ^j  3^,^,^ 

owner  tor  '^^^[^  "  r'Triminnl  cases  it  is  the  scienter, 
::  ;;;*,::,  tJi-smntes  th=  erin,e,  and  can  it  be  justor 
or  the  intcni,  innocent  man,  an  agent, 

.lamages  *=  o*'""  ,^^  ,,„  ,,ga,as  the  intent  only 

TsS;  c;^;::rcLes,  .r  ,he  „„est,o„  oe  ^-^;~;; 

7:„r=srr:rr»st':r,H.inf,and 


lOPERTY 


nonpayment 
ncnt  and  rcn- 
uyer  and  the 
ler  from  that 
parts  with  the 
lI  r.xlaim  the 
bona  fide  pur- 
3  or  the  other 
:s  the  penalty 

vvn,  or  assume 
his  own  prop- 
ds  sent  to  him 
for  the  charges 
payable  to  the 
noncy ;   and  he 
)£  the  contract 
pal  at  the  time 
Tiere  agent  for 
srs  to   another. 
e  value  of  the 
admit  that  if  he 
out  to   sell  did 
r  such  notice  he 
ible  to  the  real 
(iiount  of  sales, 
t  is  the  scienter, 
can  it  be  just  or 
;  man,  an  agent, 
ovvlcdge   or  evil 
arraigned  for  a 
And  to  excuse 
y  or  unintention- 
ime  to   mulct  in 
ing  of   another's 
ds  the  intent  only 
;raud  at  the  com- 
lerson  buys  goods 
a  judgment,  and 


HOI  TMAN    V.    CAHOW, 


537 


does  not  do  it  to  defeat  a  creditor's  execution,  it  will  not  affect 
his  purchase. 

All  the  cited  cases,  and  which  I  have  previously  examined, 
show  that  there  was  a  demand  made  before  suit  b.  lUght  In 
this  case  it  is  not  pretended  that  before  this  suit  was  in^iituted 
there  was  any  demand  whatever  made,  the  claimant  resting 
;iloiie  upon  the  legal  principle  that  the  sale  was  a  conversion. 
1  am  satisfied,  however,  that  a  formal  demand  should  have 
hoen  made  on  those  auctioneers  before  this  suit  was  brought; 
;in(i  that  it  should  never  be  permitted  that  a  person  who  comes 
innocently  into  the  mere  custody  of  property,  without  claiming 
any  title  to  it  in  his  own  rigiit,  and  who  by  virtue  of  a  public 
office  conferred  upon  him  by  the  government  of  the  country 
acts  merely  as  nt  for  the  sale  of  that  property,  and  is  known 
as  such  ti  the  world,  should  be  held  liable  to  respond  in  dam- 
ages to  the  person  who  may  afterward  prove  to  be  the  owner, 
without  having  at  least  the  opportunity  of  settling  with  his 
atlversar",  or  of  pa\  ir--  the  amount  claimed  without  being 
charged  with  the  additional  penalty  of  the  costs  of  a  suit. 

I  am  still  further  satisfied,  even  allowing  for  the  sake  of 
argument  that  such  formal  demand  had  been  nnade,  that  the 
plaintiffs  in  errci.  vader  circumstances  like  those  exhibited  in 
the  present  caip.  should  not  be  held  liable;  and  the  more 
especially  so  when  tii>_  person  who  claims  to  be  the  owner,  does 
not  show  that  he  has  taken  any  pains,  by  advertisement  or 
otiierwise,  to  caution  the  community  that  the  property  in  ques- 
tion has  been  feloniously  taken  from  him  ;  but  permits  them  to 
receive  it  from  the  felon,  and  to  pass  it  away  to  other  hands, 
without  the  slightest  intimation  that  the  title  does  not  accom- 
pany the  possession  in  that  as  in  all  other  cases.  What  reason 
c;in  there  be  that  the  principle  which  the  courts  have  with  so 
much  justice  adopted  with  reference  to  stolen  bills  of  exchange 
and  promissory  notes  should  not  be  applied  to  other  perronal 
property,  equally  the  subject  of  mercantile  transactions?  Why 
not  here  as  in  the  cases  of  those  evidences  of  debt,  hold  the 
chiimant  bound  to  exercise  due  diligence  in  giving  the  public 
notice  of  his  loss ;  and  leave  the  fact  of  proper  diligence  on 
lii'  ■side  and  of  due  caution  on  that  of  the  defendant,  for  a  jury 
to  determine  from  all  the  circumstances  of  the  case?  Is  it 
I  ecaust  in  the  case  of  bills  of  exchange  and  promissory  notes, 


■1 


53S       ISIODES  OF  OBTAINMXG  TITLE  TO  PERSONAL  PROrERTY. 

the  indorsement  passes  the  title?  Then  equally  effective  is  the 
possession  of  goods  to  evidence  the  title  in  all  casts,  except 
where  the  courts  have  interposed  and  held  innocent  parties 
liable  because  they  had  done  that  which  they  believed  was  legal 
and  right ;  and  had  no  means  of  knowing  to  the  contrary  but 
by  that  information. 

It  is  also  urged  on  the  part  of  the  plaintiffs  in  error,  and  with 
strong  reason  for  its  su]5port,  that  although  possession  may  not 
always  be  conclusive  evidence  of  property  in  merchandise,  yet 
whe'"  merchandise  is  abroad  in  a  foreign  country  the  exigency 
o,  f  ommcrce  requires  that  possession  shoidd  be  considered  as 
conciujive  evidence  of  property  in  all  cases,  wher?  the  purchaser 
acts  in  good  faith,  and  Aithor.t  notice  that  the  goods  do  not 
belong  to  him  who  is  in  the  possession  of  the  same.  This  it 
would  seem  should  be  the  rule,  as  the  title  of  personal  prop- 
erty passes  by  the  delivery ;  and  in  two  thirds  or  even  three 
fourths  of  all  that  is  passed  through  the  millions  of  hands  both 
in  this  country  and  Europe,  no  other  mode  of  passing  the  title 
is  used.  The  public  interest  demands  that  such  a  rule  should 
be  adopted,  or  publir.  notice  should  be  required  in  all  cases  of 
the  loss  by  felony  of  personal  property.  Otherwise,  I  can  not 
divest  my  mind  of  the  strong  impression  which  it  has  received 
that  a  blow  will  be  struck  at  the  commercial  interests  and  pros- 
perity of  our  state,  the  extent  of  the  evil  effects  of  which  it  will 
be  difficult  to  conceive.  All  who  are  in  the  least  acquainted 
with  the  commercial  relations  of  orr  country  know  that  they 
are  very  extensive  and  important  both  with  England  and  France 
and  other  countries,  amounting  to  many  millions  of  dollars  in 
the  course  of  a  year. 

Suppose  for  an  instance,  that  a  man  in  either  of  those 
European  countries  should  obtain  goods  by  felony — for  there 
are  bad  men  all  over  the  world — and  consign  them  to  a  mer- 
cantile house  ui  New  York,  one  of  the  most  respectable  firms 
in  that  city,  .vith  directions  to  sell  on  his  account  and  remit 
him  the  proceeds;  and  they,  without  any  knowledge  of  the 
manner  in  which  the  goods  have  been  obtained,  receive  and 
dispose  of  the  same,  and  remit  the  avails  as  directed ;  and  that 
some  months  after  comes  another  person  and  claims  those 
goods  as  his  property,  and  in  order  to  be  parallel  with  the  case 
under  advisement,  without  saying  a  syllable  to  those  merchants 


)rERTY. 


HOFFMAN   V.    CAROW. 


53S> 


2ctive  is  the 
asos,  except 
:ent  parties 
;cl  was  legal 
:ontrary  but 

or,  and  with 
ion  may  not 
landise,  yet 
he  exigency 
)nsidered  as 
le  purchaser 
tods  do  not 
le.  This  it 
sonal  prop- 
■   even  three 

hands  both 
iiiig  the  title 

rule  should 
all  cases  of 
jc,  I  can  not 
has  received 
its  and  pros- 
which  it  will 
:  acquainted 
w  that  they 
1  and  France 
)£  dollars  in 

ler  of  those 
y — for  there 
m  to  a  mer- 
ictabie  firms 
t  and  remit 
edge  of  the 
receive  and 
;d ;  and  that 
:laims  those 
/ith  the  case 
50  merchants 


ill  Xcw  York,  and  without  ever  having  given  any  notice  to  the 
world  of  his  loss,  he   commences    an  action   of  trover  against 
them.     Would  this  or  any  other  court  hold  them  liable  in  that 
action?  or   would   not  a  sense  of  justice    and  equity  revolt  at 
such  a  proposition?     If    such  an  action    should  be  sustained, 
iuul  a  recovery  had  against  such  firm  under  such  circumstances, 
no  mercantile  commission  house   could   thereafter   exist   in  the 
citv    of    New  York.     Baltimore,    so    far    as    this    question    is 
affected,  is  a  foreign  city,  and  the  state  of  Maryland  a  foreign 
slate.     The  several   states   of  the  Union,  it   is    crue,  have  con- 
federated for  their  mutual  safety  and   good  government,  but  in 
all  matters  which  relate  to  their  internal  police,  legislative  and 
judicial,  they  are  as  much  foreign   to  each  other  as   if  situated 
oil  cither  side   of  the  Atlantic;   and,  therefore,  in   determining 
this  important  question,  it  should   be   done    with  a  reference  to 
the  effect  it  is  to  have  upon  our  foreign   commercial   relations. 
As  1  have  before  remarked,  there  has  been   no  case,  like  the 
present,  judicially  determined  by  this  court.     Saltus  v.  Everett, 
20  Wend.  267,  was  not  the  case  of   property  sent  to   an   agent 
to  be  disposed  of,  and  the  proceeds  remitted,  but  was  the  case 
of  property  converted  here  by  a  principal,  between  which  two 
cases  there  is,  in  my  judgment,  a  wide  distinction,  and  involves 
the  same  principle  as  that  of  Everett  v.  Coffin,  6  Wend.  605. 
Having  thus  passed  through  with  such  an   examination   as  I 
have  deemed  it  my  duty  to  give  this  matter,  I  have  to  add  that 
the  rule,  as  attempted   to  be  established   on   th..    part  of  the 
defendant  in  error,  is  in   my   opinion  too   broad.     Although  I 
admit  that  the  government  is  bound  to  assist  the  rightful  osvner 
of  property  in  recovering  the  possession  of  it  when  it  has  been 
unjustly  or  feloniously  taken  from  him;  yet  I  insist  that  this 
should  not  be  at  the   expense  of  an  innocent  person,  without 
some    notice,   and    especially   in    the   present   case,    where  the 
defendant  in  error  kept  the  offender   in    hrs   employment,   in 
which  he  was  at  the  time  of  the  felony,  although  he   had  no 
charge   of  the   goods;  that,   however,  only  serves  to  free  him 
from  a  breach  ol  trust,  and  is  introduced  for  the  purpose  of 
showing  it  was  a   felony.      ihe    principle    applies  here    with 
<neat  force,  that  where  one  of  two  innocent  parties  must  suffer, 
the  law  will  impose  the  penalty  upon  him  by  whose  fault  the 
necessity  exists.     The  defendant  in  error  kept  the  felon  in  his 


540       MODKS  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

employment,  placed  cpnfidenre  in  him,  and  the  strong  proba- 
bility is  that  but  for  the  facilities  which  his  employment  in  that 
store  afforded  him,  the  felony  would  never  have  been  com- 
mitted. At  the  civil  law,  when  thinfjs  were  damajjed  or  s'olcn 
by  any  of  the  servants  belonginpf  to  a  ship  or  an  iim,  the  master 
of  the  ship  or  inn  was  held  li.nble  to  pay  double  the  value  of 
the  goods  so  damaged  or  stolen  to  the  person  sustaining  the 
loss;  but  when  the  damage  or  theft  was  done  by  a  stranger,  or 
by  persons  unknown,  the  master  was  simply  obliged  to  make 
good  the  loss.  The  reason  for  this  important  distinction  is 
very  evident.  The  master  had  in  the  first  instance  placed 
those  servants  there,  and  reposed  confidence  in  them,  which 
was  a  voluntary  act  on  his  part,  and  he  should,  therefore, 
answer  for  the  wrong  he  had  done  the  community  by  employ- 


nig  nnproper    persons,  as. 


in  most    cases,  the  exercise  of  an 


ordinary  degree  of  caution  would  have  enabled  him  to  have 
become  acquainted  with  the  character  and  habits  of  his 
employees;  but  in  the  second  instance,  the  master  had  not 
employed  the  person  who  committeil  the  injury,  or  at  least  the 
fact  that  he  had  done  so  could  not  legally  be  brought  home  to 
him,  still  as  the  goods  had  been  deposited  with  him,  they  should 
be  forthcoming,  or  he  should  pay  their  value,  but  no  damages 
as  in  the  first  instance  for  the  wrong  he  had  done  society  by  keep- 
ing about  him  untrustworthy  servants.  The  application  of 
this  principle  to  the  case  in  hand  may  be  made  with  much 
facility  and  correctness.  Although  T  fully  assent  to  the  legal 
propositions,  that  no  title  passes  where  a  felon  sells  stolen 
goods  even  to  an  innocent  purchaser,  and  that  the  owner  is 
entitled  to  take  his  goods  wherever  he  can  find  them,  yet  I  can 
by  no  means  assent  to  the  inference  sought  to  be  drawn  from 
those  propositions :  that  an  innocent  agent  who  is  not  a  pur- 
chaser, who  claims  no  title  to  the  goods  in  himself,  but  merely 
acts  as  a  public  auctioneer  in  disposing  of  them  at  a  public 
and  open  sale,  and  under  a  public  notice  that  he  will  do  so, — 
who  has  paid  over  the  proceeds  of  that  sale,  and  delivered  the 
property  to  the  vendees  before  any  notice  or  knowledge  of  the 
felony,  and  without  any  facts  or  circumstances  to  put  him  on 
his  guard,  and  without  any  previous  demand  having  been 
made  upon  him, — is  liable  in  an  action  for  the  value  thereof  to 
the  owner.  For  these  several  reasons,  I  think  the  ju  Igment  of 
the  supreme  court  should  be  reversed. 


HOI'IMAN    V.    CAUOW. 


OPERTY. 

trong  pioba- 
ment  in  thai 
:  been  corn- 
iced or  s'olcii 
1,  tlic  master 
the  value  of 
istaining  the 

stranger,  of 
^ed  to  make 
listinction  is 
;ance  placed 
them,  which 
,    therefore, 

by  employ- 
ercise  of  an 
lim  to  have 
bits  of  his 
ter  had  not 
r  at  least  the 
ght  home  to 
,  they  should 
no  damages 
ety  by  keep- 
)plication  of 

with   much 
to  the  legal 

sells  stolen 
le  owner  is 
n,  yet  I  can 
drawn  from 

not  a  pur- 
I  but  merely 
at  a  public 
'ill  do  so, — 
elivered  the 
edge  of  the 
put  him  on 
aving  been 
le  thereof  to 
iu  Igment  of 


541 


N 


By  Senator  Vkrplanck. — The  decision  of  this  court  last 
vi:n-.  in  the  case  of  Saltus  v.  Everett,  20  Wend.  267,  acknowl- 
cdi^cd  and  confirmed  the  principle,  that  the  owner  of  personal 
property  can  not  be  divested  of  his  rights,  unless  by  his  own 
;Kt  or  his  own  assent;  and  that  it  is  no  defense  against  such  a 
superior  and  original  title  for  a  subsequent  possessor,  tiiat  he 
honestly  purchased  the  goods  in  the  course  of  trade  from  a 
jierson  not  authorized  to  sell  them,  though  otherwise  in  lawful 
liossession.  In  applying  this  doctrine  to  the  present  case,  the 
tollowing  questions  arise:  The  plaintiff  below  seeks  to  recover 
the  value  of  his  goods,  not  from  one  having  them  in  possession 
;md  refusing  to  deliver  them,  or  from  one  who  sold  for  his  own 
licnefit,  or  otherwise  converted  them  to  his  own  use,  but  from 
iiiictioneers  who  received  the  goods  without  knowledge  that 
thev  had  been  stolen,  sold  them,  aiid  transmitted  the  proceeds 
to  tiieir  supposed  owner,  who  was  in  fact  the  felonious  taker 
of  the  property.  Are  these  innocent  sellers  liable  to  the  true 
owner  for  the  amount  of  his  loss,  or  must  his  remedy  be 
limited  to  following  the  goods  themselves,  and  recovering 
tliem  or  their  value  from  the  persons  actually  in  possession 
under  a  defective  title.'' 

The  principle  of  the  decision  in  Saltus  v.  Everett,  and  of  the 
nutliorities  on  which  it  rests,  apply  with  equal  force  to  the 
present  case.  The  policy  of  our  law  is  to  make  every  man 
look  to  the  character  of  those  with  whom  he  deals,  and  who 
are  responsible  for  the  title  of  property  in  the  articles  bought 
luul  sold.  If  he  does  not  do  this,  he  must  take  the  consequent 
risk.  The  same  considerations  of  public  policy  apply  to  him 
who  sells  as  the  agent  of  another,  as  to  him  who  buys;  both 
of  the.n  ai'^  to  look  to  the  character  of  the  person  with  whom 
they  dea'.  li  in  this  they  are  negligent,  or  have  been  deceived, 
they  mus,  take  the  consequences  whenever  their  rights  come 
into  conflict  with  those  of  any  innocent  sufferer  by  the  act  of 
the  same  guilty  third  party.  Accordingly  the  doctrine  of  our 
decisions  is,  that  the  original  and  true  owner  of  movable 
jjroperty,  who  has  not  by  his  own  act  or  assent  given  a  color  of 
litlc  or  an  apparent  right  of  sale  to  another,  may  recover  the 
value  of  those  goods  from  any  one  having  them  in  possession 
and  refusing  to  deliver  them  up,  or  who  has  applied  them  to 
his  own  use,  or  has  in  any  other  way  converted  them,  i.  e., 


543 


MODES  OK  OUTAIXINC;   TITLE  TO  PERSONAL  IMIOI'KKTY. 


has  clian<>[cd  the  substance  of  tlic  things  in  question,  their 
character,  use,  or  ownership,  to  the  injury  of  tlie  real  owner. 
The  fjround  of  tlie  action  used  for  the  purpose  is  not  the  actual 
possession  of  the  movables,  but  some  wrongful  act  relating  to 
them:  a  tortious  refusal  to  deliver  them,  a  tortious  taking,  or 
else  their  wrongful  conversion  ;  which  last  is  presumed  upon 
the  refusal  to  give  them  up,  and  which  is  proved  t)y  a  sale 
without  authority.  According  to  Lork  Coke,  in  the  oldest 
leading  case  on  this  head,  which  still  preserves  its  authority. 
Isaac  v.  Clark,  i  Bulst.  313,  "there  must  be  an  act  done  to 
convert  one  thing  into  another,"  and  a  converting  into  money 
by  sale  has  always  been  held  to  be  within  this  deiinition.  The 
very  recent  English  case.  Peer  v.  Humphrey,  2  Adol.  &  E. 
495,  recognizes  this  same  doctrine. 

In  the  argument  before  us,  it  was  very  strongly  urged  that  a 
rule  of  law,  thus  charging  mere  agents,  would  work  great 
public  injury  as  well  as  private  injustice;  as  it  would  extend 
to  common  carriers,  ship  masters,  and  others,  through  whose 
hands  goods  feloniously  or  wrongfully  obtained  might  pass. 
There  may  be  some  cases  going  to  that  length,  but  they  are 
not,  in  my  judgment,  within  the  principle  or  the  policy  of  the 
rule,  nor  are  they  included  in  the  older  decisions,  as,  for 
instance,  in  the  one  just  cited  from  Bulstrode.  I  can  not  think 
the  law  charges  one  who  had  accidentally  a  temporary  posses- 
sion of  goods  without  claim  of  property,  and  with  which  he 
has  parted  before  demand.  It  requires  a  wrongful  taking  or 
conversion  of  the  thing  itself  to  make  the  transaction  tortious. 
The  auctioneers  who  have  sold  the  goods  now  in  question  have 
made  such  an  unauthorized  conversion,  and  must  be  answer- 
able for  the  value.  In  this  instance  the  rule  falls  hardly  upon 
innocent  and  honorable  men  ;  but  looking  to  general  considera- 
tions of  legal  policy,  I  can  not  conceive  a  more  salutary 
regulation  than  that  of  obliging  the  auctioneer  to  look  well  to 
the  title  of  the  go.  Is  which  he  sells,  and  in  case  of  feloniously 
obtained  property,  to  hold  him  responsible  to  the  buyer  or  the 
true  owner,  as  the  one  or  the  other  may  happen  to  suffer. 
Were  our  law  otherwise  in  this  respect,  it  would  afford  a 
facility  for  the  sale  of  stolen  or  feloniously  obtained  goods, 
which  could  be  remedied  in  no  way  so  effectually  as  by  a  stat- 
ute regulating  sales  at  auction,  on  the  principles  of  the  law  as 
we  now  hold  it. 


Ol'KKTY. 


HOFFMAN    V,    CAKOW. 


^3 


^stion,  their 
real  owner, 
jt  the  actual 
:t  lelatiiifi;  to 
IS  taking,  or 
HiiiHcl  upon 
d  t)y  a  sale 
I  the  oldest 
;s  authority, 
act  done  to 
into  money 
lition.  The 
Adol.  &  E. 

urged  that  a 
work  great 
\'Ould  extend 
ough  whose 
might  pass, 
but  they  are 
jolicy  of  the 
ans,  as,  for 
:an  not  think 
arary  posses- 
th  which  he 
ul  taking  or 
ion  tortious, 
[uestion  have 
t  be  answer- 
hardly  upon 
al  considera- 
lore  salutary 
look  well  to 
)f  feloniously 
buyer  or  the 
en  to  suffer, 
uld  afford  a 
ained  goods, 
as  by  a  stat- 
f  the  law  as 


2.     It  has  been  maintained  with  great   ability  that  the   rule 
thus  stated,  though  admitted  to  be  true  as  to  goods  tortioiisly 
olitained,  does  not  apply  to  goods  feloniously  taken,  and   that 
damages  for  the  conversion  of   such  goods  can   he  recovered 
only  after  conviction  of  the  felon,  and   only   from  the  person 
converting  or  refusing  to  deliver  the  goods  after  that  time.      In 
the  present  case,  the    felon   was  convicted,  but   the   conversion 
and  sale  had  iaken   place  before  the  conviction.     This  ground 
was  probably  not  taken  before  the  supreme  court,  as  it  is  not 
noticed  in  the  opinion  delivered  in   that  court.     I  am  not  quite 
clear  whether  this  may  not  be  the  existing  law  of  England, 
and  whether  an  action   like  the  present   could   at  any   time  be 
maintained  there.   By  the  ancient  common  law  a  person  robbed 
could  regain  his  property  only  by  an  appeal   of   larceny   after 
conviction.     The    statute,    3i     Hen.    VIII.,    gave    the    party 
robbed    a   right    to    immediate    restitution    after    conviction. 
Several  decisions  upon   the   act  gave  it  a  construction  in  con- 
formity with  the  old  law  of  appeal.     It  was  strictly  held  that 
the  civil  action  was  merged  in  the  felony.      After  conviction  of 
the  felon,  the  stolen  goods  could  be  reclaimed  even  if  sold   in 
market    overt,    and   whoever  sold  them    after   that  date    was 
deemed  a  tortious  converter.     But   it   has  been  expressly    de- 
cided that  the  owner  who  had  prosecuted  the  thief  to  convic- 
tion, can  not  recover  the  value   of  his  goods   from  one  who 
bought  them  from  the  thief,  and  sold   them   again   before   con- 
viction, even  with  notice.     2  Term  R.  750.     In  the  words  of 
Chief  Justice  Best,  in  another  case  (Simpson  v.  Woodhert,  2 
Car.  &  P.  41):   "The  law   is  this:    you   must  do  your  duty  to 
tlie  public  before  you    seek   a  benefit  to   yourself;   and    then 
there  is  no  necessity  for  a  civil  action.     The  decisions,  says  he, 
go  not  only  to  the  case  of  an  action  against  the  felon,  but  also 
against  persons  who   derive  title   under  him.     If  such   actions 
could  be  maintained,  there  would  be  no  criminal  prosecutions." 
The  authority  of  these  and  similar  decisions   has  been  much 
shaken,  and  certainly  much  narrowed  in  their  application,  by 
the  case  of  Peer  v.  Humphrey,  2  Adol.  &  E.  495,  decided  in 
1S3-.     There  the  court  of  king's  bench  held,  that  in  trover  for 
oxen  feloniously  sold  by  a  servant,  their  value  might  lie  recov- 
ered from  the  bona  fide   purchaser  who  had   sold   them  again 
before  conviction.     In  this  case  the  authority  and  reasoning  of 


544       MOPES  0|.    OIITAINING  TITLE  TO  I'EUSONAL  PROPERTY. 

Lord  Keiiyon  in  3  Term  R.  750,  were  overruled  by  his  suc- 
cessor, the  present  Chief  Justice  Denman. 

But  in  my  opinion  we  are  not  called  upon  to  reconcile  these 
cases,  or  to  decide  between  them,  for  whatever  may  be  the  'aw 
of  England,  it  is  quite  clear  that  these  peculiar  exceptions  to 
the  general  principle  of  the  law,  obtaining  on  special  grounds 
of  policy,  have  no  application  within  this  state.     Not  only  has 
the  foundation  of  the  doctrine  been  removed  by  the  abolition 
of  appeals  of  felony  and  of  the  former  statutory  provision  of 
restitution,  but   a   contrary  doctrine  has  been  expressly  substi- 
tuted.    The  English  law  established  the  universal  rule  that  the 
felony  excluded  or  suspended  the  civil  suit  until  after  convic- 
tion.    Our  Revised  Statutes  enact  thus  (p.nrt  3,  c.  4,  tit.  i): 
"The  right  of  any  person  injured  by  felony,  shall  not  in  any 
case   be   merged  in  such  felony  or  be  in  any  manner  affected 
thereby."     The  first  part  of   the  section  may,  perhaps,  by  a 
strict  construction,  be  confined  to  the  action  against  the  felon 
himself,  which  was  formerly  held  to  be  merged  in  the  felony ; 
but  the  concluding  words  have  no  force  or  effect  unless  they 
extend  to  cases  like  the  present.     Chief  Justice  Best,  as  just 
cited,   says:      "The   decisions  go  not  only  to  the  case  of  an 
action  against  the   felon,   but   also    against   persons   claiming 
under  him."     As  the  action  against  the  felon  is  restored  by  the 
first  part  of  the  section,  so  that  against  persons  claiming  under 
him   must  be  comprehended  under  the  final  words:      "The 
rights  of  any  person  injured  by  any  felony,  shall  not  be  in  any 
manner  affected  thereby."     The  abrogation  of  the  whole  pol- 
icy of  the  English  law  on  this  head,  removes  the  only  exception 
before  known  to  the  general  right  of  the  real  owner  to  follow 
his  property  and  recover  its  value  in  any  hands  whatever.    But 
we  need  not  rest  merely  on  the  general  terms  of  this  enactment. 
The  whole   policy  of  the  statute  of  restitution  upon  which  the 
English    decisions   stand,    has    been    altered    in    our   statute. 
Instead   of   requiring   a   conviction   before   stolen    goods    are 
restored,  lest  (as  Hale  and  Blackstone  say)  "felonies  should 
be  made  up   and   healed,"   our   Revised   Statutes  direct  that 
"  upon  receiving  satisfactory  proof  of  the  title  of  any  owner, 
the  magistrate   who  shall  take  the  examination  of  an  accused 
person,  may   order  the   same  to  be  delivered  to  such  owner." 
And  again:   "If  stolen  property  shall  come  into  the  custody 


^ 


I. 


PEllTV. 


HOFFMAN    V.    CAKOW, 


545 


jy  his  8UC- 

ncile  these 

be  the  'aw 
ceptions  to 
ial  grounds 
fot  only  has 
le  abolition 
)rovision  of 
jssly  substi-         | 
•ule  that  the 
fter  convic- 
;.  4,  tit.  i): 
II  not  in  any 
ner  affected 
irhaps,  by  a 
ist  the  felon 

the  felony ; 

unless  they 
Best,  as  just 
i  case  of  an 
ns   claiming 
stored  by  the 
liming  under 
rds:      "The 
lot  be  in  any 
e  whole  pol- 
iily  exception 
ner  to  follow 
latever.    But 
is  enactment, 
on  which  the 

our  statute. 
I  goods  are 
lonies  should 
;s  direct  that 
f  any  owner, 
>f  an  accused 
such  owner." 
-i  the  custody     ^         35 


of  any  magistrate,  upon  satisfactory  proof  of  the  title  of  any 
.jsvncr  thereof,  it  shall  be  delivered  to  him."  Finally,  the 
l',ii'4lisli  statute  is  in  substance  re-cnactcd,  with  this  remarkable 
adilition:  "If  the  property  shall  not  before  have  hetn  dcllv- 
ncd  to  the  owner."  These  several  provisions,  taken  in  con- 
luction  with  the  abolition  of  appeals  of  felony  and  of  the 
merger  of  the  civil  remedy  in  the  criminal  prosecution,  show, 
1  think,  conclusively,  that  the  English  doctrine  on  this  head, 
iven  in  the  more  limited  sense  as  laid  down  by  Chief  Justice 
Denman,  has  no  application  in  this  state. 

If  this  view  of  the  subject  be  correct,  our  own  legislation 
liere  affords  another  instance  of  the  gradually  but  increasing 
respect  for  the  rights  of  original  ownership  against  all  other 
claims  (even  that  of  an  innocent  and  apparently  lawful  posses- 
sor), which  has  marked  the  advance  of  civilized  life.  Chan- 
cellor Kent  (2  Kent,  Comm.  320)  has  drawn  a  striking  and 
pir.losophical  outline  of  this  advance.  He  has  shown  how,  in 
the  earlier  ages  of  the  Roman,  the  German,  and  the  English 
law.  the  rights  of  the  first  proprietor  of  things  movable,  when 
divested  of  his  possession,  had  little  preference  over  that  of  any 
other  possessor  under  color  of  right;  and  how  the  respect  for 
ilie  rights  of  property  kept  on  increasing  in  efficacy  with  social 
improvement  and  the  corresponding  advance  of  the  law,  from 
rudeness  to  refinement. 

3.  It  has  also  been  urged  before  us  that  where  merchandise 
is  abroad  in  a  foreign  state,  the  necessities  of  commerce  require 
tiiat  possecsion  shall  be  regarded  as  conclusive  evidence  of 
property  in  respect  to  a  purchaser  who  acts  in  good  faith.  It 
has  also  been  argued  that  the  cause  of  action  arising  in  Mary- 
land, where  the  goods  were  sold,  the  decision  of  this  cause 
might  be  governed  or  modified  by  the  law  of  that  state.  The 
law  of  England,  as  well  as  that  of  all  those  states  where  the 
common  law  forms  the  ground  work  of  the  local  jurisprudence, 
considers  all  persona'  actions,  whether  ex  contractu  or  ex 
delicto,  wherever  the  cause  of  action  arose,  as  transitory,  and 
subject  to  the  law  of  the  jurisdiction  under  which  the  parties 
are  litigant.  It  is  a  principle  of  the  same  law,  pervading  the 
jurisprudence  of  almost  all  civilized  countries,  that  "movables 
are  governed  by  the  law  of  the  domicil  of  the  owner."     Lord 


546     Monns  ok  ohta.n.no  -nrL.  vo  pkusona..  puo-kktv. 

T.ouKhborouRh  has  stated  the  rule  thus:  "It  is  a  dear  propo- 
S  that  pLonal  property  has  no  U.cality  •'  -luch  pa  ch  - 
callv  sou.uhuti  maxim  he  explains  to  mean,  that  persona 
p"  perty ' 'is  subject  to  the  h.w  which  governs  the  person  ol 
C:Zr,  both  in  respect  to   its  disposition   and  Us    nmsm.- 

^  ::^r  •;:  ^i^f  fU  cof  cts,  the  ja^^^^^^^^^ 

of  contract  is  recognized  as  to  the  force   and  effect  of   the  con 
t^t^;  becau:;  it  is  presumed  to  enter  into  the  c^ns.den. 
on  o    the  parties,  to  form  a  part  of  the  bargau.,  and  to  .n  e  - 
nvet  its  language  and  meaning.     In  other  respec  s,  r.ghts  as  to 
™al  property   are   seldom  governed  ^^y  ^»- '" -' ^I  ^'   ° 
of  the  jurisdiction  where  it  may  accidentally  be,  whdst  the 
llr  dwills  and  the   suit  is  brought  elsewhere      ^ovv,  ths 
•snot  a  case  of  contract,  but  a  question  of  ownersh.p  and  co  - 
VrsVon.     The  same  rule,  therefore,  must  be  apphed  to  the  ,aL 
o    thes    goods  in  IJaltimore  as  if  they  had  been  sold  n.  A  bany 
Th 'r:  may  pos.bly  be  cases  where  the  «ame  ---  o    ^u^t. 
and  Dolicv  which  give  authority  in  our  courts  to  the  forc.<,n 
ol  con^Lts  may'give  similar  weight  to  U.  le.  re.  s.Ue    so  as 
to  make  the  foreign  law  of  the  temporary  locality  of  the  mm 
ir   vary   that  of  the   owner's  domicil.     The  extent  or  the 
^t^tio  s'of   such  exceptions   to  the  general  1- we  are  n^ 
now   called  upon  to   decide.     We  have   no  evidence  that  the 
Lc'l    aw  of  Maryland  differs  as  to  th.s  matter  from  our  own. 
The  nled  fact,  that  the  goods  were  sold  in  another  state,  can 
have  no  eHe  1 1^  change  or  vary  those  rights  of  personal  prop- 
erty which   are  prescHbed  by  that  which,  in  th.s  case,  >salke 
a  e  irw  of  the  owner's  domicil,  and  of  the  jur.sd.ct.on  m  wh.ch 
he  ass-ts  these  rights.     The  judgment  of  the  supreme  cou.t 

■^' Orth:  ;^:rn  being  put,  ShaH  this  judgment  be  reversed  P 
the  members  of  the  court  divided  as  follows: 

In  the  afl^rmative-Senators  Furman,  Hawkms,  Hull,  May 

"tn'  rteTat'ive-The  Chancellor,  and  Senators  Clark, 
Edwards  Hu'nt  Hunter,  Jones,  H.  A.  Livingston  N.cholas. 
Paige  pick,  Powers,  Skinner,  Spraker,  Sterling,  Verplanck 
Wager — 16. 


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WEBSTER,  N.Y.  14580 

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COLE    V.    BERRY. 


547 


Whereupon  the  judgment  of  the  supreme  court  was  affirmed. 

Consult.— Saltus  v.  Everett,  20  Wend.  267,  32  Am.  Dec.  541 ;  Wilson 
V.  Crockett,  43  Mo.  2i6;  Velsian  v.  Lewis,  15  Oreg.  539,  3  Am.  St.  Rep. 
184;  Levi  V.  Booth,  58  Md.  305,  42  Am.  Rep.  33:;  Dame  v.  Baldwin,  8 
Mass.  51S;  Roland  v.  Gundy,  5  Ohio,  302;  Burton  v.  Curyea,  40  III. 
320;  Brower  v  Peabodj,  13  Is.  Y.  121. 


:■:-! 


§94.    Same- Eights  of  third  parties. 
COLE  V.  BERRY. 

[42  N.  J.  Law,  30S;    36  Am.  liep.  511.] 

Supreme  Court  of  New  Jersey^  1880. 

Depue,  J. — Cole  sued  Berry,  in  trespass,  for  seizing  and 
selling  a  sewing  machine.  Berry,  as  one  of  the  constables  of 
the  county  of  Hunterdon,  seized  and  sold  the  machine  under 
and  by  virtue  of  a  writ  of  attachment  issued  out  of  the  justice's 
court,  against  one  Gustave  VVct/el.  Cole  was  the  owner  of 
the  machine.  He  entered  into  a  contract  for  the  sale  of  it  to 
Wetzel,  the  terms  of  which  appear  in  the  following  agreement 

in  writing: — 

"Annandale,  June  26,  1876. 

"Whereas,  the  subscriber  have  this  day  purchased  of  Josiah 
Cole  one  Domestic  sewing  machine,  for  the  sum  of  tifty-tive 
dollars,  for  which  I  have  given  fitteen  dollars  in  cash,  and  my 
note  tor  forty  dollars,  payable  in  installments  of  live  dollars  a 
month,  and  1  have  allowed  him  to  take  the  machine  in  his 
possession :  Now,  it  is  agreed  that  the  said  machine  is  to  be 
and  remain  the  property  of  the  said  Cole,  and  be  subject  to  his 
control,  until  the  same  is  actually  paid  for  in  cash. 

"Gustave  Wetzel." 

Cole  delivered  the  machine  to  Wetzel,  under  this  arrange- 
ment, "and  it  was  in  the  possession  of  the  latter  when  it  was 
levied  on  by  the  defendant.  For  the  $15,  which,  by  the  agree- 
ment, was  payable  in  cash,  Wetzel  gave  a  due  bill,  payable  in 
eight  days.  For  the  balance  of  the  contract  price,  Wetzel 
ga^ve  a  note,  payable  according  to  the  terms  of  the  agreement. 
Neither  the  due  bill  nor  the  note  has  been  paid.     On  the  trial, 


54S       MODES  OF  ORTAIXING  TITLE  TO  PERSONAL  PHOPERTV. 

the  court  gave  jiul-ment  for  the  defendant,  on  the  ground  that 
the  written  agreement  was  fraudulent  and  void,  and  that  the 
plaintiff  had  no  title  to  the  machine  when  it  was  attached. 

The  agreement  is  inartistically  drawn.  It  leaves  it  in  some 
doubt  whether,  in  legal  import,  the  paper  is  to  be  considered 
as  a  "mortgage,  or  convevance  intended  to  operate  as  a  mort- 
gage." within  the  thirty-ninth  section  of  the  Act  concerning 
mo'rtgagcs  (Rev.,  p.  709),  or  as  containing  the  terms  of  a  con- 
tract  of  sale  between  the  parties.  The  court  below  evidently 
regarded  it  in  the  latter  aspect,  for  there  is  no  mention  in  the 
ca"e  of  the  filing  or  non-filing  of  the  instrument  as  a  chattel 
mortgage.  Taken  in  connection  with  the  other  evidence,  the 
transacrion  is  susceptible  of  such  an  interpretation,  and  I  will 
adopt  that  construction  for  present  purposes.  I  do  so  the  more 
readily  as  either  construction  presents  for  examination  the 
soundness  of  the  reason   on  which  the  judgment  of  the  court 

was  base<:l. 

The  legal  proposition  which  entered  into  the  judgment  below 
is  either  tliat  a  contract  for  the  sale  of  a  chattel,  followed  by 
delivery  to  the  vendee,  passes  title  to  the  vendee,  although  it 
be  one  of  the  terms  of  the  contract  that  the  title  shall  not  pass 
until  the  contract  price  be  paid,  or  that  such  an  agreement  is, 
fcr  sc,  fraudulent  and  void,  as  against  creditors  of  the  pur- 
chaser. 

Neither  of  the  foregoing  propositions  contains   a  correct  ex- 
position of  the  law.     No  rule  of  law  is  better  settled  than  that, 
in  the  sale  of  chattels,  property  will  pass  or  not,  according  ta 
the  intention  of  parties,  as  expressed   in   the    contract  of  sale. 
"It  is  a  general  rule  that  when   a   man   hath   a  thing,  he  may 
condition  with  it  as  he  will."     Shep   Touch.    118.     Mr.   Ben- 
jamin states  the  general  rule   in   this  language:      "Where  the 
buyer  is,  by  the  contract,  bound  to  do  anything  as  a  condition, 
either  precedent  or  concurrent,  on   which   the   passing  of  the 
property  depends,  the  property  will   not  pass  until   the   condi- 
tion be  fulfilled,  even  though  the  goods  may  have  been  actually 
delivered  into  the  possession  of  the  buyer."  Benj.  on  Sales,  223. 
Payment  of  the  contract  price  is  one  of  the  most  usual  con- 
ditions on  which  the  transfer  of  title  depends.     It  is  generally 
a  condition  to  be  performed  simultaneously  with  delivery.     If 
such  be  the  contract,   a  waiver  of  the  condition  may  be  pre- 


OPERTY. 

frround  that 
ind  that  the 
tached. 
s  it  in  some 
;  considered 
;  as  a  mort- 
t  concerning^ 
ms  of  a  con- 
5\v  evidently 
Mition  in  the 
as  a  chattel 
ividence,  the 
,  and  I  will 
3  so  the  more 
mination  the 
of   the  court 

gment  below 
followed  by 
;,  althouijh  it 
hall  not  pass 
is^rcement  is, 
1   of  the  pur- 

a  correct  ex- 
ed  than  that, 

according  ta 
tract  of  sale, 
ling,  he  may 
?.     Mr.   Ben- 

" Where  the 
3  a  condition, 
assing  of  the 
til  the   condi- 

been  actually 
on  Sales,  223. 
)st  usual  con- 
t  is  generally 

delivery.     If 

may  be  pre- 


COLE    V.    BERRY. 


549 


sumed  from  an  unconditional  delivery,  without  exacting  pay- 
ment, and  in  the  absence  of  explanatory  proof,  the  prope-ty 
will  vest  in  the  purchaser.  2  Kent,  496 ;  Smith  v.  Lynes,  i  Seld. 
41;  Carleton  v.  Sumner,  4  Pick.  516;  Smith  v.  Dcnnic,  6  Id. 
263-266;  Farlow  v.  Ellis,  15  Gray,  229.  But  where  the  deliv- 
ery is  conditional,  as  where  the  parties  have  stipulated  that, 
notwithstanding  delivery,  the  title  shall  not  pass  until  the  con- 
tract price  be  paid,  property  in  the  chattel  will  not  pass  to  the 
vendee  until  payment  be  m.ide.  The  vendor's  title  is  not 
divested  by  a  conditional  delivery,  if  the  terms  of  sale,  with 
respect  to  payment,  be  not  complied  with.  D'Wolf  v.  Babbctt, 
4  Mason,  2S9;  Copeland  v.  Bosquet,  4  Wash.  C.  C.  5SS;  The 
Oriole,  I  Sprague,  31  ;  Parsons  on  Contracts,  537.  In  Ballard 
V.  Burget,  40  N.  Y.  314,  Grover,  J.,  styles  such  a  contract  an 
executory  agreement  that  the  title  shall  pass  on  the  happening 
of  the  stipulated  event — the  payment  of  the  price.  Mr.  Story 
distinguishes  it  from  a  purely  executory  contract  in  this  partic- 
ular: that  an  executory  contract  is  absolutely  to  sell  at  a  future 
time,  and  a  conditional  contract  is  conditionally  to  sell.  In  the 
one  case,  he  says,  the  performance  of  the  contract  is  suspended, 
and  transferred  to  a  future  time ;  in  the  other,  the  very  exist- 
ence and  performance  of  the  contract  depend  upon  a  contin- 
gency.   Story  on  Contracts,  sec.  246. 

As  between  the  immediate  parties  to  the  contract,  the  prin- 
ciple above  mentioned  is  inflexibly^  adhered  to.  There  is  some 
diversity  of  views  with  respect  to  its  application  as  against 
creditors  of  the  vendee  and  bona  jide  purchasers  from  him,  for 
full  value.  In  some  of  the  courts,  it  has  been  held  that  con- 
ditions in  contracts  of  sale,  that  title  shall  not  pass  until  pay- 
ment of  the  purchase  money,  •  are  not  good  as  against  those 
laiming  under  the  vendee  as  creditors  or  purchasers,  when 
possession  is  delivered  to  the  vendee.  Another  class  of  cases 
liold  that,  while  conditions  of  this  character  are  valid  as  against 
the  creditors  of  the  vendee,  they  are  invalid  as  against  bona  Jide 
purchasers  from  him.  These  decisions  are  the  outcome  of  the 
doctrine  that  upon  a  sale  of  chattels,  possession  inconsistent 
with  the  actual  title  is,  per  sc,  fraudulent  and  void,  as  against 
creditors  and  bona  Jide  purchasers.  This  doctrine  is  not  in 
force  in  this  state.  Our  courts  have  held  that  a  possession 
s\  liich  is  consistent  with  the  agreement  between  the  parties  is 


550      MODES  OK  OHTAINIXG  TITLE  TO  TERSONAI.  PROPERTV. 

not   of  itself,  actually  or  constructively  fraudulent.     Runyon  v. 
Groshou,  I  Bcas.  S6',  Broadway  Hank  v.   McElrath,  2  Id.  34; 
Miller  ads.  Pancoast,  5  Dutcher,  250.     A  vendor  who  delivers 
possession  of  chattels  to  his  vendee,   under   an   executory  con- 
tract that  the  title  shall  pass  on  payment  of   the  contract  price, 
mav  forfeit  his  property  by  conduct  which  the  law  re-ards  as 
fraudulent,  as  where,  in  addition  to  possession,   he  clothes  the 
vendee  with  an  apparent  title,  on  the  faith  of  which  third  per- 
sons are  induced  to  act  in  giving  credit  or   in  becoming  pur- 
chasers,  or  where  he  knowingly  permits  the  vendee  to  exercise 
-,cts  of  ownership  over  the  property,   inconsistent  with  only  a 
qualified  right  of  possession,  to  the    injury  of  others.     In  such 
cases   the  question  of  fraud  becomes  one  of  fact,  to  be  decided 
bv  a  iury  upon  the  circumstances  of  the  particular  case.     But 
where  the  case  presents  no  other  features  than  that  the  vendor 
has  entered  into  a  contract  of  sale  on  credit,  and  has  delivered 
the  -oods  to  the   vendee,   upon   an   agreement  that  they  shall 
remain  the  property  of  the   vendor  until  the   payment  of  the 
purchase  money,  the  property  in  the  goods  remar      in  the  ven- 
dor until  payment  be  made,  without  being  subject  to  execution 
at  the  suit  of  the  creditors  of  the  vendee,   and   the  title   of  the 
vendor  is  preferred  to  that  of  purchasers  from  the  vendee.     _ 

Possession  by  the  vendee,  under  a  contract  of  sale  containing 
a  stipulatior,  whether  verbal  or  in  writing,  that  the  property 
shall  not  pass  until  payment  of  the  contract  price,  is  not  fraud- 
ulent and  creditors  of  the  vendee  can  not  seize  the  property 
under  execution  until  the  condition  be  performed.  Bump  on 
Fraud.  Con.  150.  In  Herring  v.  Ho,.pock,  15  N.  Y.  409, 
the  plaintiff  delivered  a  safe  to  Brooks  &.  Hopkins  on  a  contract 
of  sale  as  follows:  ^^^^^^^  ^^^^^^  February  6,  1853. 

uReceived  from  Silas  C.  Herring,  one  Salamander  patent 
safe  No  4910,  delivered  to  us  this  day,  under  a  bargain  for 
the  sale  thereof,  and  for  which  we  have  given  our  note  at  six 
months  for  $335.  And  it  is  expressly  understood  that  Herring 
neither 'parts  with,  nor  do  we  acquire  any  title  to  said  safe, 
until  said  note  is  fully  paid;  and  in  case  of  default  in  the  pay- 
ment thereof  at  maturity,  said  Herring  is  hereby  authorized  to 
enter  our  premises  and  take  and  remove  said  safe,  and  collect 
all  reasonable  charges  for  the  use  of  the  same. 

"Brooks  &  Hopkins." 


'KRTV. 

Runyoii  v. 
,  2  Id.  34; 
10  delivers 
intory  con- 
ract-  price, 
re<jards  as 
clothes  the 

third  per- 
)niing  pur- 
to  exercise 
nth  only  a 
i.  In  such 
be  decided 
case.     But 

the  vendor 
s  delivered 
:  they  shall 
nent  of  the 

in  the  ven- 
to  execution 
title  of  the 
endee. 
i  containing 
:he  property 
is  not  fraud- 
the  property 
Bump  on 

N.  Y.  409, 
on  a  contract 

y  6,  1853. 
mder  patent 
bargain  for 
ir  note  at  six 
that  Herring 
to  said  safe, 
t  in  the  pay- 
luthorized  to 
;,  and  collect 

Hopkins." 


COI-E    V.    BERKV, 


55» 


Brooks  &  Hopkins  failed  to  pay  the  note  mentioned  in  the 
ngreement,  and  on  the  ninth  of  August,  1853,  it  was  protested 
ior  nonpayment.  On  the  twenty-sixth  of  June,  1853,  the  safe 
was  seized  and  sold  by  the  sheriff,  under  executions  against 
Brooks  &  Hopkins.  In  an  action  for  wrongfully  taking  and 
converting  the  safe  the  court  held  that,  undar  the  contract  in 
question,  the  property  of  the  vendor  was  not  divested,  and  that 
he  could  recover  its  value  of  the  execution  creditor,  by  whose 
direction  the  safe  was  sold,  under  an  execution  against  the 
vendee.  In  Cole  v.  Mann,  3  N.  Y.  Sup.  Ct.  380,  the  plain- 
tiffs, who  were  dealers  in  pianos,  shipped  a  piano  to  one  Jcnnc, 
under  an  agreement  that  the  piano  should  remain  the  property 
of  the  plaintiffs  till  paid  for,  and  that  if  Jennc  made  sale  of  the 
piano,  he  shouh'  remit  proceeds  sulficient  to  pay  a  note  he  gave 
for  the  contract  price.  It  was  held  as  against  an  execution 
creditor  of  the  consignee,  that  title  did  not  pass  from  the  con- 
signor, and  that  the  property  was  not  liable  to  levy  and  sale 
under  an  execution  against  the  consignee. 

As  to  creditors,  a  sale  and  delivery  of  a  chattel,  on  condition 
that  the  title  shall  remain  in  the  vendor  until  the  price  be  paid, 
vests  no  title  in  the  vendee  before  payment,  vvhich  shall  be  sub- 
ject to  levy  under  an  execution  against  the  vendee.  Marston 
v.  Baldwin,  17  Mass.  606;  Blanchard  v.  Child,  7  Gray,  155; 
Porter  V.  Pettengill,  12  N.  H.  399;  McF  irland  v.  Farmer,  43 
Id.  3S6;  Gaylor  v.  Dyer,  5  Cranch  C.  C.  461;  Strong  v. 
Taylor,  2  Hill,  336;  Forbes  v.  Marsh,  15  Conn.  384-395. 

With  regard  to  purchases  from  a  vendi,.,  in  po<isession  under 
a  contract  of  sale,  a  distinction  is  observed  b(.'tween  the  vendor's 
right  to  rescind  the  sale  for  fraud,  and  his  right  to  resume  pos- 
session where  goods  have  been  delivered  under  a  conditional 
contract  of  sale.  Where  the  sale  is  upon  credit,  but  is  absolute 
in  terms,  and  the  vendor  intends  to  transfer  property  as  well  as 
possession,  the  property  passes  to  the  vendee,  by  the  contract 
of  sale,  leaving  in  the  vendor  only  a  right  of  rescission  for 
fraud.  He  may,  in  that  case,  repossess  himr.clf  of  the  prop- 
erty, notwithstanding  a  levy  upon  it,  under  an  execution  against 
the  vendee.  Williamson  v.  N.  J.  S.  R.  R.  Co.,  2  Stew.  311. 
The  title  passing  to  the  vendee,  by  the  contract,  and  being 
vested  in  him  until  the  sale  be  disaffirmed,  an  innocent  pur- 
chaser for  value  may,  before  disaffirmance  of  the  sale,  acquire 


JD- 


MODF.S  OK    OBTAINING   TIT'.E  TO  PEKSONAL  PROPERTY. 


an  indefeasible  title,  tlioiif^h  the  sale  be  voidable  as  between 
tiie  original  parties.  White  v.  Garden,  lo  C.  U.  919;  Steven- 
son V.  Ncwnham,  13  Id.  285-303;  Mowrey  v.  Walsh,  8  Cow. 
33S;  Root  V.  French,  13  Wend.  570;  Hoffman  v.  Noble,  C> 
Mete.  68.  Hnt  where  the  vendee  is  in  possession  under  a  con- 
ditional contract  of  sale,  he  has  no  property  to  co:pvcy  to  a 
purchaser,  and  the  vendor's  title  never  having  been  divested, 
he  may  reclaim  the  property  if  the  condition  be  not  performed ; 
even  as  against  a  purchaser  for  value  in  good  faith.  In  Ballard 
v.  Burgett,  40  N.  Y.  315,  the  contest  was  between  the  vendor 
and  a  bona  fide  purchaser  of  the  property  from  the  vendee. 
The  court  held  that  under  a  conditional  contract  to  purchase 
one  of  the  terms  of  which  was  that  the  chattel  which  was  deliv- 
ered to  the  vendee  should  remain  the  property  of  the  vendor 
until  the  contract  price  was  paid,  the  title  remained  in  the 
vendor  against  a  bona  fide  purchaser,  who  bought  of  the  vendee 
in  good  faith,  and  paid  full  value,  without  notice  of  the  rights 
of  the  vendor.  Decisions  of  other  courts  to  which  we  are 
accustomed  to  look  for  correct  expositions  of  the  common  law, 
are  to  the  same  effect.  Dresser  Mfg.  Co.  v.  Watcrston,  3 
Mete.  9;  Coggill  v.  Hartford  &  New  Haven  R.  R.  Co.,  3 
Gray,  545;  Sargent  v.  Metcalf,  5  Id.  306;  Rurbank  v. 
Crooker,  7  Id,  15S;  Deshon  v.  Bigelow,  8  Id.  159;  Hirschorn 
V.  Canney,  98  Mass.  149;  Zuchtman  v.  Roberts,  109  Id.  53; 
Bennerv.  Puffer,  1 14  Id.  376;  D'Wolf  v.  Babbett,  4  Mason, 
2S9;  Copland  v.  Bosquet,  4  Wash.  C.  C.  50S;  Tibbetts  v. 
Towle,  12  Me.  341;  Haven  v.  Emery,  33  N.  II.  66-,  Kimball 
V.  Jackman,  43  Id.  242. 

The  cases  cited  above  aS'  holding  the  doctrine  that,  on  a 
conditional  sale,  property  continues  in  the  vendor  as  against 
creditors  of  and  purchasers  from  the  vendee,  though  possession 
is  delivered  to  the  latter,  are,  it  seems  to  me,  founded  on  cor- 
rect principles.  In  Pennsylvania,  a  distinction  is  taken  between 
delivery  under  a  bailment,  with  an  option  in  the  bailee  to  pur- 
chase at  a  named  price,  and  a  delivery  under  a  contract  of  sale 
containing  a  reservation  of  title  in  the  vendor  until  the  contract 
price  be  paid,  it  being  held  that,  in  the  former  instance,  prop- 
erty does  not  pass  as  in  favor  of  creditors  and  purchasers  of 
the  bailee,  but  that,  in  the  latter  instance,  delivery  to  the 
vendee  subjects  the  property  to   execution  at  the   suit  of  his 


^1 


i 


OPEUTV. 

as  between 
19;  Steven- 
ilsh,  S  Cow. 
V.  Noble,  Ci 
under  a  con- 

co:ivcy  to  a 

en  divested, 

t  performed ; 

In  Ballard 

I  the  vendor 

the   vendee. 

to  purchase 
;h  was  deliv- 
)f  the  vendor 
:iined  in  the 
)f  the  vendee 
of  the  rights 
hich  we  are 
:ommon  law, 
,Vaterston,  3 
.  R.  Co.,  3 
Burbank    v. 


Hirschorn 


109  Id.  53; 
;tt,  4  Mason, 
i  Tibbetts  v. 
66]  Kimball 

le  that,  on  a 
)r  as  against 
^h  possession 
nded  on  cor- 
iken  between 
Dailee  to  pur- 
mtract  of  sale 
1  the  contract 
stance,  prop- 
purchasers  of 
livery  to  the 
e   suit  of  his 


coGGiLL  V.  nAunoiin,  ktc,  r.  co. 


553 


creditors,  and  makes  it  transferable  to  bona   (idc   purchasers. 
Chamberlain  v.  Smith,  44  Pa.  431;   Rose  v.  Story,  i  Id.  190; 
Marsh   v.  Mathiot,  14   S.   &  R.  211;   Hank  v.  IJnderman,  64 
Pa.  499.      This  distinction  is  discredited  by    the   great   weight 
of  authority,  which  puts  possession  under  a  conditional  contract 
of  sale  and  possession  under  a  bailment  on  the  same  footing — 
liable    to  be  assailed    by   creditors   and   purchasers   for   actual 
fraud,  but  not   fraudulent   per  se.     Besides   the   cases    already 
cited   on  that  subject,  numerous  decisions  of  like  import  are 
referred  to  by  Mr.  Perkins,  in  his  edition  of  Benjamin  on  Sales, 
section  320,  note.     From    the  hypothesis  that,  inter  partes,  no 
title  passes  to  the  vendee,  under  a  contract  of  sale  which  is  condi- 
tional as  to  the  transfer  of  title,  until  the  condition  is  performed, 
the  only  deduction  that  can  rationally  be  made  is  that,   in  such 
a  transaction,  the  title  of  the  vendor  must  also  prevail  over  the 
rights  of  the  creditors  of  a  purchaser  from  the  vendee,  whose 
rights  can  not  rise  higher  than  the  source  from  which  they  are 
derived,  unless  they  can   show  a  title  superior  to  that  of  the 
vendee  whom  they  represent,  arising  from  some  conduct  of  the 
vendor  which  the  law  denominates  as  fraudulent.     Po.-,session 
is  evidence  of  title,  but  is  not  title,  and  in  this  state  possession 
by  a  party,  not  in  accordance  with  the  actual   state  of  the  title, 

is  not,  per  se,  fraudulent. 

The  judgment  should  be  reversed. 

See  note  to  next  case. 


COGGILL  V.  HARTFORD,  Etc.,  R.  CO. 

[3  Gray,  545.] 
Supreme  Judrcial  Court  of  Massachusetts,  1854. 

BiGELOW,  J.— It  has  long  been  the  settled  rule  of  law  in  this 
commonwealth,  that  a  sale  and  delivery  of  goods,  on  condition 
that  the  property  is  not  to  vest  until  the  purchase-money  is 
paid  or  secured,  does  not  pass  the  title  to  the  vendee,  and  that 
the  vendor,  in  case  the  condition  is  not  fulfilled,  has  a  right  to 
repossess  himself  of  the  goods,  both  against  the  vendee  and 
ao-ainst  his  creditors,  claiming  to  hold  them  under  attachments. 


551        MODES  OF  OBTAINING  Tl TI.K  TO  I'EKSONAL  PROPERTY. 


Ilussey  V.  Thornton,  4  Mass.  405;  Marston  v.  Baldwin,  17 
Id.  606;  IJanctt  V.  rritcliard,  2  Pick.  512;  Whitwell  v. 
Vincent,  5  Id.  449;   Hill  v.  Freeman.  3  Cusli.  257. 

In  the  case  at  liar,  the  jury  have  found  that  the  original  ?  ile 
and  delivery  by  the  phiintiffs  were  conditional.  But  the  de- 
fendants claim  to  hold  the  poods  in  controversy,  as  bailees  of  a 
bona Jidc  purchaser  from  tiie  original  vendee,  on  the  ground 
that,  having  purchased  them  in  good  faith,  the  rule  above  stated 
is  not  applicable,  and  tiiat  a  valid  title  to  the  property  is  vested 
in  such  purchaser.  This  position  is  supposed  to  be  supported 
by  a  dictum  of  Chief  Justice  Parsons,  in  Ilussey  v.  Thornton, 
by  which  it  is  implied  that  in  such  cases  the  vendor  can  not 
reclaim  goods  in  the  possession  of  (5o«a^(/c  purchasers  from  his 
vendee.  But  the  authority  of  this  dictum,  so  far  as  it  ever  had 
any,  was  entirely  overthrown  in  Ayer  v.  Bartlett,  6  Pick.  7S, 
where  Chief  Justice  Parker  said  that  it  could  not  be  sustained 
as  a  general  proposition.  Some  of  the  elementary  writers  have 
stated  such  a  doctrine  in  unqualified  terms;  but  the  authorities 
cited  by  them  in  its  support  do  not  sustain  the  text.  Hilliard 
on  Sales,  sees.  95  ct  scq.;  Story  on  Sales,  sec.  313.  Chancellor 
Kent,  after  stating  the  rule  as  to  vendees  and  attaching  cred- 
itors, in  conformity  with  the  decisions  above  cited,  adds,  that 
as  to  bona  Jide  purchasers,  the  rule  might  be  otherwise.  2 
Kent,  Com.  [6  Ed.]  49S.  In  Hill  v.  Freeman,  3  Cush.  259, 
the  most  recent  case  on  the  subject  in  our  own  reports,  the  court 
say,  that  the  right  of  the  vendor  to  reclaim  property  in  such 
cases,  in  the  hands  of  bona  Jide  purchasers  is  an  open  question. 

Looking,  then,  at  this  case,  as  we  think  we  may,  as"  one  not 
depending  on  authority,  but  to  be  determined  on  just  and  sound 
principles,  it  is  difficult  to  see  any  good  and  satisfactory  reason 
for  the  distinction,  which  is  attempted  to  be  made,  between  the 
rights  of  the  vendee  and  his  creditors  to  goods  sold  and  deliv- 
ered on  condition,  and  those  of  bona  Jide  purchasers.  All  the 
cases  turn  on  the  principle,  that  the  compliance  with  the  con- 
ditions of  sale  and  delivery  is,  by  the  terms  of  the  contract, 
precedent  to  the  transfer  of  the  property  from  the  vendor  to  the 
vendee.  The  vendee,  in  such  cases,  acquires  no  propei-ty  in  the 
goods.  He  is  only  a  bailee  for  a  specific  purpose.  The  delivery 
which  in  ordinary  cases  passes  the  title  to  the  vendee  must  take 
effect  according  to  the  agreement  of  the  parties,  and  can  operate 


«a 


p 


y 


%\ 


PERTV. 

aldvvin,  17 
'^hitwell  V. 

iglnal  ?  lie 
lit  the  de- 
lilees  of  a 
le  ground 
)ove  stated 
y  is  vested 

supported 
Thornton, 
5r  can  not 
rs  from  his 
it  ever  had 

Pick.  7S, 
2  sustained 
riters  have 
authorities 
,  Hilliard 
Chancellor 
hing   cred- 

adds,  that 
crwise.  2 
Cush.  259, 
5,  the  court 
ty  in  such 
1  question, 
as"  one  not 
:  and  sound 
:ory  reason 
etween  the 
and  deliv- 
.  All  the 
h  the  con- 
;  contract, 
ndor  to  the 
perty  in  the 
he  delivery 

must  take 
:an  operate 


COGGII.L    V.    MAKTKORD,    KTC,    II.    CO. 


555 


to  vest  the  property  only  when   the   contingency  contemplated 
In-  the  contract  arises.     The  vendee,  therefore,   in  such  cases, 
liiiving  no  title  to  the  property,  can  pass  none  to  others.    lie  has 
only  a  hare  right  of   possession;    and    those   who   claim   under 
liim,  either  as  creditors  or  purchasers,  can  acquire  no  higher  or 
1  letter  title.     Sucli  is  the  necessary  result  of  carrying  into  effect 
tiie  intention  of  the  parties  to  a   conditional    sale   and   delivery. 
Any  other  rule  would  be  equivalent  to  the  denial  of  the    valid- 
itv  of  such  contracts.      But  they  certainly  violate  no  rule  of  law, 
nor  are  they  contrary  to  sound  policy.     The  cases  above  cited 
expressly  recognize  them  as  legal  and    valid  contracts  between 
the  vendor,  on  the  one  hand,  and  the  vendee  and  his  creditors, 
on  the  other.     If  valid  to  this  extent,  it  necessarily  follows  that 
they  are  so  for  all  purposes.     If  the  property  does  not  pass  out 
of  the  vendor  for  one  purpose,  it  certainly  does  not  for  another. 
If  it  remains  in  him  at  all,  it  is  because  such  is  the  agreement 
of  the  parties,  and  it  can  not  be  divested  by  any  act  of  the  ven- 
dee until  the  contract  is  fulfilled.   A  bona  fide  r,.. chaser,  as  well 
as  an  attaching  creditor,  must  acquire  his  title  through  the  ven- 
dee.    If  the  latter  has  no  title,  he  can  communnate  none.   The 
purchaser  and  the  attaching  creditor  are,  in  this  -espcct,  upon 
the  same  footing.     No  equities  can  intervene  to  give  the  former 
a  better  right  as  against  the  original  vendor  than  the  latter;  they 
are  in  aquail  jure.    Neither  of  them   has  a  legal   title   to  hold 
the  property. 

A  mere  possession  by  the  vendee  carries  with  it  no  right  or 
authority  to  transfer  the  title.  That  continues  in  the  vendor 
until  the  conditions  of  sale  and  delivery  are  complied  with  by 
the  vendee,  or  are  waived  by  the  vendor.  And  this  constitutes 
the  precise  distinction  between  a  sale  and  delivery  of  goods  on 
condition,  and  a  sale  procured  by  fraud  or  false  representations 
on  the  part  of  the  vendee.  In  the  latter  case,  the  property 
passes  by  the  sale  and  delivery,  because  such  was  the  agreement 
and  intent  of  the  parties.  Therefore,  the  vendee,  having  the 
property  as  well  as  the  possession  of  the  goods,  can  pass  a 
good  title  to  a  purchaser,  who  takes  the  goods  in  good  faith  and 
without  notice  of  the  fraud.  But  the  vendor  can  reclaim  the 
goods  by  rescinding  the  contract  and  avoiding  the  sale,  so  long 
as  they  remain  in  the  hands  of  the  vendee,  or  of  any  one  who 
has  taken  them  with  notice  of  the  fraud,   or  without  paying  a 


556      MODES  OK  (.HTA.N.NO  TirLK    .()  l-.iUSONA..  l-UOnCRTV. 

valuable  consideration  for  them.     In  such  case  the  title   to  the 
goods  is  in  the  vendee,  though  defeasible  at   the   "Pf «"  of    he 
vendor,  because  the  vendee,  or  those  chumn,«  und .r  h.m   v   h 
knosvled.^e  of  the  fraud,  can  not  honestly  or   le.al  y   hold  the 
property  as  against  him.     Hut  in  the  case  of  -  cond.f  onal  sale 
and  dcHvery,  the  title  does  not  pass  from  the   vendor  untd  th 
:„dition  iJluUiUed.     The  vendee  o^>^^^ ;^^  ^^f^^ ;;^^'^ 
s.lc    to  dispose  of  the  property,  but   only  to   hold   .  tun  d  the 
t;'ms  of  the  contract  are  complied  with.     White  v.  Garden,  lo      ,  ^ 
C    H.  OK),  70  En<r.  Com.  Law. 

It  is  mi-d,  and  this  we  suppose  to  be  t.e  mam  argument  on 
which  th^  contrary  doctrine   is  founded,  that   as  possess-on  of 
pergonal  property  is  ^ru,nr  Jacic  evidence  of  title,  .t  won  d  fur- 
^  s    f    u  lulent  parties  with   the  means  of   defraudn.g  hones 
"chasers,  to  Intrust  them   with    the    apparent   ownersh.p  o 
p  op  rty,    vhile  the  real  title   is  allowed   to   rem.am  n,   a  th.rd 
am,  who  can  reclaim  it  at  pleasure.     If  a  vendor,  by  colh. 
s  on   vith  his  vendee,  entered  into  the  contract    and  annexed 
he  conditions,  for  the  purpose  of  enabling  the  latter  to  obtam 
.    alse  credit,  or  to  impose  on  innocent  persons,  by  means  o 
ihe  property  placed  in  his  possession,  the  argument  would  oe 
leci  iv  .     In  such  case,  the  vendor,  being  a  party  to  the  fraud 
touUl  be  estopped  to  set  up  any  title  to    the   property;  and 
Te   itors,  as  well  a.  innocent  purchasers  of  the  vendee    m.ght 
w      claim  to  hold  .t,  on  the  ground  that  it  was  placed  m  h:s 
ossession  for  a  fraudulent  purpose.     But  when  the  contract  of 
s-de  is  entered  into  in  good  faith,  for  the  purpose  of  enabling 
he  V-  ndor  to  realize  his  purchase  money,  or  obtain  secunty   or 
t,  in     onformity  with  the  original   terms  of  the  bargam,  the 
a  gument  a6  uLnvenicnti  is  without  any  foundation  m  pnn- 
c  p     or  authority.     The  general  rule  of  the  common  law  has 
2ays  been  that  a  man  who  has  no  -thor.ty  *° -"  ;.';V"ot 
by  making  a  sale,  transfer  the  property  to  another.     Ch.t.  Con. 
rS   \m    £d  1  343.     Except  in  cases  of  sales  in  market  over  , 
whidi  do  not  exist  in  this  commonwealth,  possession,  of  itself, 
Confers  no  authority  to  sell.     A  lessee  of   chattels  or  a  badee 
fo     a  special  purpose  can  pass  no  title  to  a  vendee,  w.thou 
authority  from  the  lessor  or  bailor;    and  yet  the  property  is 
intrusted  to  their  possession,  as  apparent  owners    m  the  same 
banner  as  to  a  vendee  under  a  conditional  sale.     Besides,  there 


Is  n 
lent 
rec< 
upo 
lose 
witl 
reli 
ilai 
i>is 
to  s 
on 

(|IU 

Lu 

3  I 

in  I 
so 

WJl 


Ml 
nii 

Ai 


'■ 


a 

li 
a 


UOPKIITV. 

ic  title  to  tlie 
option  of  the 
uljr  him  with 
,Mlly  hold  the 
jiuiitional  sale 
ntlor  until  the 
;ht,  under  such 
Id  it  until  the 
!  V.  Garden,  lo 


nAUKKU    V.     niNSMOllK. 


557 


li 


in  argument  on 
s  possession  o£ 
le,  it  would  fur- 
ruudinp;  honest 
t  ownership  of 
nain  in  a  third 
ndor,  by  coUu- 
t,  and  annexed 

latter  to  obtain 
s,  by  means  of 
ment  would  be 
rty  to  the  fraud, 
•  property ;  and 
e  vendee,  might 
IS  placed  in  his 
n  the  contract  of 
)Ose   of  enabling 
btain  security  for 
the  bargain,  the 
undation  in  prin- 
common  law  has 
y  to  sell  can  not, 
her.     Chit.  Con. 

in  market  overt, 
session,  of  itself, 
attels  or  a  bailee 
I  vendee,  without 
it  the  property  is 
^ners,  in  the  same 
e.     Besides,  there 


^     is  no  good  reason  or  etiuity  in  placing  the  burden  of  a  fraudii- 

lint  sale  by  a  vc-ndec,  in  violation  of  the  condition  on  which  he 

received   the   property,   upon  a  bona  Mc  vendor,  rather  than 

^     upon  a  bona  fide  purcliascr.     On  the  contrary,   if  eitlu-r  is  to 

\     lose  by  his  fraudulent  act,  it  should  be  the  latter,  who  has  dealt 

uitli  a  party  having  no  authority,  instead  of  the   former,  who 

relics  upon  a  valid  subsisting  contract  as  the  ff>undation  of  his 

ilaim.     It  is  the  duty  of  the  purchaser  to  iniiuire,   and  see  that 

liis  vendor  has  a  good  title  to  the  property  which  he  undertakes 

5     to  sell.     These  views  are  supported  by  the  authorities:      Long 

1     on  Sales  [2  Am.  Ed.]   1S9.  and  cases  cited;   Copland    v.    Hos- 

\     (luet,  4  Wash.  C.  C.  5SS;  D'Wolf  v.  liabbett,  4  Mason,  294; 

^     Lucy  V.  Hundv,  9  N.   IL   298;   Porter  v.  Pettengill,  i3  N.  IL 

j     299;   llerr,"?'v.  Willard,  2  Sandf.  41S;    Barrett  v.  I'ritchard, 

I     2  Pick.  5i2rDresser  Mfg.  Co.  v.  Watcrston,  3  Met.  9. 

;         The  instructions  given  to  the  jury,  in  the  present  case,  were 

i     in  conformity  with  these  principles ;   and  were  carefully  guarded, 

so  as  to  prevent  the  plaintiffs  from  recovering  if  they  had   been 

.riiilty  of  laches  in  reclaiming  their  property,  or  had  in  any  way 

waived  the  conditions  on  which  the  property  in  controversy  was 

sold  and  delivered  to  the  oilginal  vendee. 

Exceptions  overruled. 

Consult— Rarrott  v.  Prltchard,  3  Pick.  512,  13  Am.  Dec.  447  ;  Singer 
Mftt.  Co.  V.  Cole,  4  Lea.  439-  4"  Am.  Kep.  20;  Rogers  v.  Wliiteliouse, 
M  Me.  222;  Sumner  V.  Woods,  67  Ala.  139,  42  Am.  Rep.  114;  Zucht- 
Inann  v.  Roberts.  109  Mass.  53-  i^  Am.  Rep.  663;  Harkness  v.  Russell, 
iiSU.  S.  678;  Winchester  Wagon  Works  v.  Carmen,  100  Ind.  31,58 
Am.  Rep.  382. 

BARKER  V.  DINSMORE. 

[73  Pa.  St.  427;    13  Am.  Rep.  697.] 
Supreme  Court  of  Pennsylvania,' May  17,  1872. 

Replevin  by  John  Dinsmore  against  William  Barker,  Jr., 
and  Jesse  B.  Kilgore,  trading  as  William  Barker  &  Company 
lor  certain  sacks  of  wool.  Judgment  for  plaintiff,  and  defend- 
ants bring  error. 

A  man,  representing  himself  to  be  connected  with  defendant 
firm,  bought  from  plaintiff,  at  the  latter's  farm,  the  wool  in 


55S       MODES  OK  oniAlNlNG  TITI.K    TO  I'EKSONAL  I'ROPERTY. 

question,  and  gave  him  a  mcmoranchim  to  that  effect  on  a 
business  card  of  defendants,  telling  him  to  come  to  defendants' 
oflice  in  the  city  ^/y  procure  his  pay.  Tlie  wool  was  shipped  by 
plaintiff  to  defendants,  but  on  its  arrival  in  the  city  possession 
of  it  was  procured  by  the  person  who  had  arranged  tl.e  sale, 
and  who  in  fact  had  no  connection  with  defendants  'i»fl  by 
him  sold  to  defendants,  they  paying  him  what  tl.jy  considered 
the  wool  was  worth. 

Williams,  J. — The  verdict  of  the  jury  establishes  the  fact 
that  the  plaintiff  below  did  not  sell  the  wool  to  the  defendants' 
vendor,  as  an  individual,  on  his  own  responsibility,  but  as  a 
member  or  agent  of  the  defendants'  firm,  and  upon  their  credit. 
Nor  was  the  wool  delivered  to  him  by  the  plaintiff.  It  was 
delivered  to  the  railroad  company,  to  be  carried  to  Pittsburg, 
and  there  delivered  to  defendants,  to  whom  it  was  consigned 
by  the  plaintiff.  Under  the  contract  of  shipment  the  company 
had  no  right  to  deliver  the  wool  to  any  person  except  the  con- 
signees; and  their  delivery  of  it  to  the  defendants'  vendor 
vested  in  him  no  property  or  right  of  possession  as  against  the 
plaintiff.  The  principle  which  underlies  this  case,  and  bv 
which  the  rights  of  the  parties  are  to  be  determined,  is  this: 
The  sale  of  goods  by  one  who  has  tortiously  obtained  their  pos- 
session without  the  owner's  consent,  vests  in  the  purchaser  no 
title  to  them  as  against  the  owner.  As  a  general  rule  no  man 
can  be  divested  of  his  property  without  his  own  consent  and 
voluntary  act.  It  is  true  that  there  are  exceptions  to  the  rule, 
as  clearly  defined  and  as  well  settled  as  the  rule  itself,  but  this 
case  does  not  come  within  any  of  them.  Here  the  defendants' 
vendor,  as  we  have  seen,  acquired  no  right  or  title  to  the  wool 
under  his  contract  with  the  plaintiff,  and  he  did  not  obtain  from 
him  its  actual  possession.  The  railroad  company  had  no 
authority,  as  the  plaintiff's  agent,  to  deliver  the  wool  to  him, 
and  their  delivery  gave  him  no  right  or  title  to  it  whatever. 
Nor  had  he  any  apparent  or  implied  authority  from  the  plaintiff 
to  sell  or  dispose  of  it.  It  is  clear,  then,  that  he  could  convey 
no  title  by  its  sale  ;  and  if  so,  the  defendants  could  acquire  no 
title  by  its  purchase,  though  they  purchased  it  for  a  fair  and 
valuable  consideration,  in  the  usual  course  of  trade,  without 
notice  of  the  plaintiff's  ownership,  or  of  any  suspicious  circum- 


r 


iXAI.  IMJOl'KRTY. 

to  that  effect  on  a 
come  to  defendants' 
vool  was  shipped  by 
the  city  possession 
arranj^ed  tl.e  sale, 
lefendant>,  and  by 
hat  thjy  considered 


establishes  the  fact 
1  to  the  defendants' 
onsibility,  but  as  a 
k1  upon  their  credit. 
e  plaintiff.  It  was 
irried  to  Pittsburg, 
n  it  was  consigned 
iment  the  company 
on  except  the  con- 
defendants'  vendor 
ssion  as  against  the 

this  case,  and  by 
determined,  is  this: 
'  obtained  their  pos- 
n  the  purchaser  no 
;neral  rule  no  man 
s  own  consent  and 
;ptions  to  the  rule, 
rule  itself,  but  this 
ere  the  defendants' 
or  title  to  the  wool 
did  not  obtain  from 

company  had  no 
•  the  wool  to  him, 
tie  to  it  whatever. 
;y  from  the  plaintiff 
at  he  could  convey 
;s  could  acquire  no 
d  it  for  a  fair  and 
!  of  trade,  without 

suspicious  circum- 


EASTEK    V.    ALLEX. 


559 


stances  calculated  to  awaken  inquiry  or  put  them  on  their 
guard.  The  case  is  a  hard  one  in  any  aspect  of  it.  One  of 
two  innocent  parties  must  suffer  by  the  fraud  and  knavery  of  a 
swindler,  who  had  no  authority  to  act  for  either.  But  the  law 
is  well  settled  that  the  ow'ier  can  not  be  divested  of  his  property 
without  his  own  consent,  unless  he  has  placed  it  in  the  posses- 
sion or  custody  of  another  and  given  him  an  apparent  or  implied 
right  to  dispose  of  it.  The  case  was  tried  on  this  principle  and 
as"" there  is  no  error  apparent  in  the  record  the  judgment  must 

be  affirmed. 

Judgment  aftirmcd. 

See  note  to  Coggill  v.  R.  Co.,  ante,  p.  557. 


§  95.    Same— The  case  of  a  voidable  title. 
EASTER  V.  ALLEN. 

[8  Allen,  7.] 
Supreme  Judicial  Court  of  Massachusetts,  1864. 

Replevin.     At  the  trial   the   plaintiffs    introduced  evidence 
that  the  goods  were  obtained  from  them  by  N.  Allen  without 
payment,  and  by  fraud  and  false  pretenses.     For  the  purpose 
of  showing  fraud,  they  offered  evidence  to  show  that  two  days 
after  the  transaction  Allen  went  into  a  store  in  Boston  to  pur- 
chase goods,  and  informed   the  salesman  that  he  had  taken  a 
lease  of  a  store,  and  was   going   into  business,  and  gave   the 
name  of  D.  P.  Dodge,  as  a  reference ;  and  they  offered  to  show 
what  Dodge    said  in  reply  to  inquiries    made    of  him  by  the 
sidesman.     It  was  not   contended   that  the  answers  of  Dodge 
were  a  part  of  the  pretenses  under  which  the  plaintiff's  goods 
were  obtained,  or  that  they  were  false ;   ai]d  the  judge  rejected 
the  evidence.     The  plaintiffs   also   offered  to   show   that,  in  .1 
subsequent  interview  with  the  same  salesman,  Allen  introduced 
to  him  one  J.  T.  Dodge,  as  a  dealer  in  fluid  lamps  onTremont 
Row,  in  Boston ;   and  that  the  salesman   inquired  at  Tremont 
Row',   and  found  that  said  Dodge  was  not  a  dealer  in  fluid 
lamps  there.     This  evidence  was  rejected. 

One  of  the  plaintiffs  testified  as  a  witness,  and  the  defendant 


560       MODES  OF  OBTAINING  TITLK  TO  PERSONAL  PROPERTY. 

offered  to  show,  by  cross-examination  of  him,  that  five  days 
before  the  trial  he  made  a  complaint  against  N.  Allen  for 
obtaining  the  goods  by  false  pretenses,  and  that  the  warrant 
which  issued  thereon  was  served  on  the  morning  of  the  trial, 
by  arresting  Allen.  This  evidence  was  objected  to,  but  the 
judge  admitted  it  to  show  bias  or  interest,  thereby  affecting 
the  credibility  of  the  witness. 

The  judge  instructed  the  jury  that,  it  being  agreed  that  the 
goods  came  into  the  possession  of  the  defendant  by  a  transac- 
tion which  had  the  form  of  a  sale,  the  burden  was  on  the 
plaintiffs  to  show,  by  a  preponderance  of  testimony,  not  only 
that  the  goods  were  obtained  by  said  N.  Allen  by  false  pre- 
tenses, but  that  the  defendant  was  not  an  innocent  purchaser. 

The  jury  returned  a  verdict  for  the  defendant,  anu  the  plain- 
tiffs alleged  exceptions. 

Merrick,  J. — It  appears  from  the  bill  of  exceptions  to  have 
been  satisfactorily  proved  or  admitted  that  the  goods  replevied 
were  formerly  owned  by  the  plaintiffs,  and  were  sold  by  them 
to  N.  Alien.  He  afterward  sold  and  delivered  them  to 
defendant,  who  claims  title  thereto  only  under  and  by  force  of 
that  sale  to  him.  The  plaintiffs  alleged  that  the  sale  by  them 
to  N.  Allen  was  induced,  and  that  he  obtained  possession  of 
the  goods,  by  fraud  and  by  false  and  fraudulent  pretenses.  If 
such  was  the  fact,  they  may  undoubtedly  rescind  and  avoid 
their  contract  of  sale,  and  may  maintain  this  action  against  the 
defendant,  unless  he  was  a  purchaser  in  good  faith,  for  value 
paid,  and  without  notice  of  fraud.  Hoffman  v.  Noble,  6  Met. 
68;    Rowley  v.  Bigelow,  i3  Pick.  307. 

The  plaintiffs,  having  produced  evidence  upon  the  trial 
tending  '.o  show  the  alleged  fraud,  asked  the  court  to  instruct 
the  jury  that  if  N,  Allen  obtained  the  goods  from  them  by 
fraud  and  false  pretenses,  the  burden  of  proof  was  upon  the 
defendant  to  show  that  he  bought  them  in  good  faith  and  for 
value  paid. 

But  the  court  declined  to  accede  to  this  request,  and  rules 
that  the  burden  of  proof  was  on  the  plaintiff  to  show  by  a  pre- 
ponderance of  evidence,  not  only  that  the  goods  were  obtained 
by  N.  Allen  by  false  pretenses,  but  also  that  the  defendant  was 
not  an  innocent  purchaser;  and  the  jury  were  accordingly 
instructed  to  that  effect. 


dMB 


LOPERTY. 

lat  five  days 
r.  Allen  for 
the  warrant 
of  the  trial, 
i  to,  but  the 
=by 


affecting 


eed  that  the 
by  a  transac- 
was  on  the 
my,  not  only 
by  false  pre- 
it  purchaser, 
nu  the  plain- 

itions  to  have 
)ds  replevied 
sold  by  them 
red  them  to 
id  by  force  of 
sale  by  them 
Dossession  of 
)retenses.  If 
nd  and  avoid 
)n  against  the 
ith,  for  value 
sfoble,  6  Met. 

^on  the  trial 
rt  to  instruct 
rom  them  by 
was  upon  the 
faith  and  for 

est,  and  rules 
low  by  a  pre- 
were  obtained 
defendant  was 
e   accordingly 


EASTER    V.    ALLEN. 


561 


This  ruling  was  erroneous.  It  was  sufficient  in  the  first 
instance  for  the  plaintiffs  to  prove  that  they  were  the  owners  of 
the  goods,  and  that  their  title  thereto  was  never  divested  by 
any  lawful  contract  binding  upon  them.  They  had,  therefore, 
it  such  were  the  fact,  an  undoubted  right  to  reclaim  and 
recover  the  goods  from  any  person  who  had  not  purchased 
tliem  in  good  faith  and  for  value  paid.  This  is  an  exception  of 
which  the  defendant  might  avail  himself.  But,  to  establish 
the  validity  of  his  title  acquired  under  the  sale  to  N.  Alien,  it 
i-;  incumbent  on  him  to  show  that  he  was  a  purchaser  in  fact, 
rind  paid  value  for  tiie  goods.  Proof  to  this  effect  will  estab- 
lish his  right,  unless  it  be  further  shown  by  the  plaintiffs  that, 
."t  the  time  of  his  purchase,  he  had  knowledge  of  the  fraud. 

In  respect  to  promissory  notes,  it  has  been  repeatedly  de- 
termined that  if  they  have  been  fraudulently  obtained  from  the 
maker,  or  fraudulently  put  into  circulation,  in  an  action  thereon 
liy  an  indorsee,  the  burden  of  proof,  after  such  fraud  has  been 
established,  is  on  him  to  show  that  he  became  possessed  of 
them  in  good  faith,  by  a  purchase  and  payment  of  value. 
Sistermans  v.  Field,  9  Gray,  331  ;  Estabrook  v.  Boyle,  i  Allen, 
^12;  Tucker  v.  Morrill,  lb.  52S;  Smith  v.  Edgeworth,  3 
Allen,  233.  The  reason  of  the  rule  is  applicable  with  greater 
force  to  the  case  of  chattels  obtainec  .)y  fraud;  and,  therefore, 
a  purchaser  from  a  fraudulent  grantee,  who  had  no  just  title, 
ought  to  be  required  to  prove  a  fact  necessarily  in  his  own 
knowledge,  if  such  fact  occurred,  that  he  paid  value  for  the 
goods  which  he  purchased.  This  rule,  in  its  application  to 
chattels,  was  distinctly  recognized  and  affirmed  in  the  case  of 
I'lingle  V.  Phillips,  5  Sandf.  157.  And  so  in  the  cases  of 
Hoffman  v.  Noble  and  Rowley  v.  Bigelow,  ubi  supra,  the 
subsequent  purchaser  was  allowed  to  maintain  his  title  upon 
showing  affirmatively  on  his  part  that  he  paid  value  for  the 
chattels  transferred  to  him  by  a  fraudulent  vendee.  The  same 
rule  has  been  observed  and  practically  enforced  in  reference  to 
leal  estate.  Somes  v.  Brewer,  2  Pick.  1S4;  Green  v.  Tanner, 
S  Met.  411. 

The  further  rulings  of  the  court,  to  which  exception  was 
taken  by  the  plaintiffs,  were  unobjectionable.  The  testimony 
offered   as   to   what   was   said    by   D.    P.    Dodge,    and    what 


562       MODES  OF  OIITAINIXG    TITLK   TO  PEUSOXAI,  PROPERTY. 

tinsvvcrs  were  returned  to  the  plaintiffs  to  tlieir  inquiries  made 
in  Tremont  Row,  was,  under  tlie  circumstances  stated,  inad- 
missible. It  was  an  offer  of  proof,  not  of  wliat  was  said  by 
any  party  to  the  suit,  as  to  any  of  the  matters  involved  in  its 
issue,  but  by  stranjj^ers  who  had  no  connection  with  or  interest 
in  it,  and.  therefore,  was  obviously  incompetent.  The  evi- 
dence which  was  admitted  in  relation  to  the  conduct  of  the 
plaintiffs  in  reference  to  the  attendance  of  N.  Allen  as  a  wit- 
ness on  the  trial  was  competent,  as  having  some  tendency  to 
show  an  effort  on  their  part  to  suppress  the  introduction  of 
material  evidence  in  the  case,  and  thus  to  obtain  an  unfair  and 
unjust  advantage.  Such  conduct  might  well  create  a  doubt 
whether  their  allegation  as  to  any  fraud  committed  by  Allen 
was  well  founded. 

The  exceptions,  therefore,  as  to  the  rejection  and  admissi- 
bility of  evidence  must  be  overruled  ;  but  they  are  sustained  as 
to  the  ruling  of  the  court  upon  the  subject  of  the  burden  of 
proof. 

Exceptions  sustained. 

See  note  to  next  case. 


BARNARD  v.  CAMPBELL. 

[55  N.Y.  456;  58  Id.  73-] 
Court  of  Appeals  of  New   l^ork,  18^4, 

Appeal  from  order  reversing  a  judgment  in  favor  of  plaintiffs 
and  granting  a  new  trial. 

Replevin  of  1,370  bags  of  linseed.  Defendants,  in  New 
York,  purchased  of  the  broker  of  one  Jeffries,  of  Boston,  i,Soo 
bags  of  linseed  on  August  21,  1S63,  and  sent  him  their  notes  in 
payment.  Jeffries,  by  fraud,  obtained  1,370  bags  on  an  order 
from  plaintiffs  on  August  24.  The  linseed  was  delivered  to 
him,  and  shipped  to  defendants.  The  bill  of  lading  was  mailed 
to  them  on  the  twenty-fifth.  Defendants  paid  for  their  linseed  by 
their  notes  on  the  twenty-first.  Jeffries  failed  on  the  twenty- 
seventh. 


ItOrKllTV. 

iquirics  made 
stated,  in  ad- 
it was  said  by 
nvolved  in  its 
ith  or  interest 
it.  The  evi- 
)ndiict  of  the 
.Ilcn  as  a  wit- 
tendency  to 
iitroduction  of 
an  unfair  and 
;reatc  a  doubt 
ttcd  by  Allen 

and  admissi- 
e  sustained  as 
he    burden  of 

ons  sustained. 


or  of  plaintiffs 

ants,  in  New 
Boston,  i,Soo 
I  their  notes  in 
s  on  an  order 
5  delivered  to 
ng  was  mailed 
heir  linseed  by 
)n  the  twenty- 


BARNARD    \'.    CAMPUELI,. 


563 


Am.kn,  J. — The  only  question  involved  in  the  action  is, 
whether  the  plaintiffs  and  original  owners,  or  the  defendants, 
tlie  purchasers  from  Jeffries,  the  fraudulent  vendee  of  the  plain- 
tilts,  have  the  better  title  to  the  merchandise  in  controversy. 
That  as  against  Jeffries,  the  right  of  the  plaintiffs  to  rescind  the 
s;ile  and  reclaim  the  goods,  by  reason  of  the  fraud  of  the  latter, 
is  perfect,  is  conceded,  and  was  so  held  upon  the  trial.  Such 
riylit  continues  as  against  any  one  acquiring  title  under  Jeffries, 
unless  under  well  recognized  principles  of  law,  and  under  the 
circumstances  of  this  case  Jeffries  could  transfer  a  better  title 
tlian  he  had,  or  the  plaintiffs  by  their  acts  are  estopped  from 
asserting  title  as  against  a  purchaser  from  him. 

Hut  two  questions  of  fact  were  submitted  to  the  jury:  i. 
Whether  the  sale  to  Jeffries  was  for  cash  or  upon  credit;  and, 
2.  If  for  cash,  whether  payment  was  waived  and  the  goods 
(ioiivered  so  as,  but  for  the  fraud,  to  vest  the  property  in 
Jeffries. 

The  jury  found,  either  that  the  sale  was  upon  credit,  or  that 
tlic  payment  of  the  purchase  price,  as  a  condition  precedent  to 
the  delivery  of  the  property  to  and  the  vesting  of  the  title  in 
Jeffries  was  waived,  and  that  the  delivery  to  him  was  absolute 
and  unconditional;  and  the  defendants  hnd  a  verdict,  under  the 
instructions  of  the  judge,  that  the  equitable  rule  applied,  that 
when  one  of  two  innocent  parties  must  suffer  loss  by  reason  of 
the  fraud  or  deceit  of  another,  the  loss  shall  fall  upon  him  by 
whose  act  or  omission  the  wrongdoer  has  been  enabled  to  com- 
mit the  fraud ;  and  that  the  plaintiffs  were  in  the  position  of  a 
party  who  lets  another  have  property  unconditionally,  and 
tliereby  enables  him  to  sell  the  same  and  receive  the  purchase 
price  from  a  third  person  ;  and  that  in  such  case  the  purchaser 
l.ikes  the  title.  In  other  words,  the  plaintiffs  were  held  to  be 
estopped  from  claiming  the  goods  from  the  defendants  in  case 
the  jury  found  that  there  had  been  an  unconditional  delivery  by 
the  plaintiffs  to  Jeffries,  notwithstanding  as  the  judge  at  the 
circuit  expressly  declared,  and  as  the  evidence  showed,  the  de- 
fendants purchased  the  goods  from  a  broker  of  Jeffries  in  New  York 
vn  the  twenty-first  of  August,  and  paid  for  them  the  same  day  by 
ti;iiismitting  their  notes  to  Jeffries  at  Boston,  who  at  once  nego- 
tiated them ;  and  Jeffries  obtained  neither  the  property  nor  any 
order  for  its  delivery,  or  documentary  evidence  of  title  or  of  his 


564       MODKS  OF  Om-AINING  TITLE   TO  PERSONAL  PKOl'ERTY. 

purchase,  until  the  twenty-fourth  of  the  same  month,  three  days 
after  the  transaction  was  consummated  as  between  Jeffries  and  the 
defendants.  That  is,  it  was  held  at  the  circuit  that  the  sub- 
sequently acquired  possession  of  Jeffries  operated  by  relation  to 
create  an  estoppel  as  of  the  twenty-first  of  August,  in  favor  of  the 
defendants  and  against  the  plaintiffs;  and  the  jury  werj  in  terms 
instructed  that  the  defendants  were  purchasers  in  good  faith  for 
value,  and  acquired  a  title  paramount  to  that  of  the  plaintiffs, 
and  were  entitled  to  a  verdict;  and  they  had  a  verdict  and  judg- 
ment upon  this  view  of  their  rights. 

That  the  defendants  were  purchasers  in  good  faith,  that  is, 
without  notice  or  knowledge  of  the  fraud  of  Jeffries,  or  of  the 
defects  in   his  title,   for  a  full   consideration   actually   paid  to 
Jeffries,   is  not  disputed.     Both  plaintiffs    and  defendants  arc 
alike  innocent  of  any  dishonest  or  fraudulent  intent,  and  one  or 
the  other  must  suffer  loss  by  the  frauds  of  one  with  whom  they 
dealt  in  good  faith,  for   legitimate   purposes,    and   with  honest 
intention.     Both  were  alike  the  victims  of  the  same  fraudulent 
actor,  and  if  one  rather  than  the  other  of  the  parties  has  done 
any  act  enabling  the  fraud  to  be  committed,  and  without  which 
it  could  not  have  been  perpetrated  upon  the  other  in  the  exer- 
cise of  ordinary  care  and  discretion,  the  loss  should,  within  th 
rule  before  referred  to,  fall  on  that  one  of  the   parties  aiding 
and  abetting  the  fraud,  or  enabling  it  to  be   committed.     But 
good  faith,  and  a  parting  of  value  by  the  one,   will  not  alone 
determine  who  should  have  the  loss,  or  fix  the  ownership  of  the 
property  fraudulently  purchased  from  the  one  and  sold  to  the 
other.     The  general  rule  is  that  a  purchaser  of  property  takes 
only  such  title  as  his  seller  has,  and  is  authorized   to  transfer; 
that  he  acquires  precisely  the   interest  which  the  seller  owns, 
and  no  other  or  greater.     '■'Nemo  plus  juris  ad  alium  trans- 
fcrrc  potest  quam  ifse  hahctr     Broom.  Leg.  Max.  452.     The 
general  rule  of  law  is  undoubted  that  no  one  can  transfer  a  better 
title  than  he  himself  possesses.     '■'Nemo  dat  quid  non  habct." 
Per  Willes,  J.,  Whistler  v.  Forster,   14  C.  B.   (N.    S.)  24S. 
To  this  rule   there   are,  however,  some  exceptions,  and  unless 
the  defendants  are  within  the  exceptions  they  must  abide  by 
the  title  of  Jeffries. 

One   of   the    recognized    exceptions    applies   to   negotiable 
instruments  only,  and  depends  for  its  existence   upon  the  law- 


OPERTY. 

h.  three  clays 
Efries  and  the 
that  the  sub- 
ly  rehition  to 
1  favor  of  the 
iverj  in  terms 
cod  faith  for 
he  plaintiffs, 
lict  and  judg- 

lith,  that  is, 
as,  or  of  the 
I  ally   paid  to 
jfendants  arc 
t,  and  one  or 
li  whom  they 
with  honest 
ne  fraudulent 
ties  has  done 
v-thout  which 
•  in  the  exer- 
Id,  within  th 
Darties  aiding 
imitted.     But 
/ill  not  alone 
nership  of  the 
d  sold  to  the 
l^ropertj  takes 
1  to  transfer; 
I  seller  owns, 
I  alium  trans- 
IX.  452.     The 
ansfer  a  better 
/  non  habct." 
(N.    S.)  24S. 
ins,  and  unless 
nust  abide  by 

to   negotiable 
upon  the  law* 


BARXAUD    V.    CAMPnELI,. 


5^'5 


merchant  and  the  reasons  of  public  policy  upon  which  that 
branch  of  the  law  rests.  To  make  this  exception  available,  the 
negotiable  paper  must  be  actually  transferred  by  indorsement 
in  the  usual  form  and  for  value.  Whistler  v.  Forster,  supra; 
Muller  V.  Pondir  (in  this  court,  December  23,  1S73),  55  N.  Y. 
3:^;  (a)  Story,  Prom.  Notes,  sec.  120,  note  t;  Calder  v. 
Hillington,  15  Mc.  39S ;  Southard  v.  Porter,  43  N.  II.  379. 
Another  exception  is  in  the  case  of  a  transfer  by  indorsement 
and  delivery  of  a  bill  of  lading,  which  is  the  symbol  of  the 
property  itself,  to  a  bona  fide  purchaser  for  value,  by  a 
consignee  to  whom  the  consignor  and  original  owner  of  the 
o-oods  has  indorsed  and  delivered  it.  This  exception  is  founded 
on  the  nature  of  the  instrument,  and  the  necessities  of  com- 
merce. The  bill  of  lading,  for  the  convenience  of  trade,  has 
been  allowed  to  have  effect  at  variance  with  the  general  rule 
of  law.  But  this  operation  of  a  bill  of  lading  is  confined  to  a 
case  where  the  person  who  transfers  the  right  is  himself  in 
possession  of  the  bill  of  lading  so  as  to  be  in  a  situation  to 
transfer  the  instrument  itself,  the  symbol  of  the  property  trans- 
ferred. Jenkyns  v.  Usborne,  7  M.  &  G.  678;  Akerman  v. 
riumphery,  i  C.  &  P.  53- 

Bills  of  lading  differ  essentially  from  bills  of  exchange  and 
other  commercial  negotiable  instruments;^ and  even  possession 
of  a  bill  of  lading,  witliout  the  authority  of  the  owner  and 
vendor  of  the  goods,  or  when  obtained  by  fraud,  will  not 
authorize  a  transfer  so  as  to  defeat  the  title  of  the  original 
owner,  or  affect  his  right  to  rescind  the  sale  and  stop  the 
goods  in  transit.  While  possession  of  a  bill  of  lading,  or 
other  document  of  a  like  nature  may  be  evidence  of  title,  and 
in  some  circumstances  and  for  some  purposes  equivalent  to 
actual  possession  of  the  goods,  it  does  not  constitute  title,  nor 
of  itself  affect  the  operatiom  of  the  general  rule  that  property 
in  chattels  can  not  be  transferred  except  by  one  having  the 
title  or  an  authority  from  the  true  owner.  Gurney  v.  Behrend, 
3  Ellis  &  Black.  622;  Dows  v.  Perrin,  16  N.  Y.  325;  see, 
also,  Saltus  v.  Everett,  20  Wend.  267,  32  Am.  Dec.  541; 
Brower  v.  Peabody,  13  N.  Y.  121.  Jeffries  had  no  bill  of 
lading  from  the  plaintiffs,  the  vendors  of  the  goods,  or  any 
document  of  like  character  transferable  in  the  usual  course  of 
business,  and  the  transfer  and  delivery  of  which  to  a  purchaser 


1^66       MODKS  OK  OBTAINING   TITLE  TO  PERSONAL  PROPEUl  Y, 


for  value  would  have  operated  as  a  symliolical  delivery  of 
the  goods,  and  been  the  equivalent  of  an  actual  delivery,  so  a-- 
to  terminate  the  right  of  the  plaintiffs  to  rescind  the  sale  and 
reclaim  the  goods. 

Another  exception  to  the  general  rule  exists  in  the  case  of  a 
sale  in  market  overt ;  but  as  we  have  no  markets  overt,  and 
there  are  no  sales,  public  or  private,  known  to  our  law,  which 
relieve  the  buyer  of  merchandise  from  the  rule  of  caveat 
cmi)tor,  as  applied  to  the  title,  this  exception  need  not  bo 
further  considered. 

The  defendants  can  only  resist  the  claim  of  the  plaintiffs  to 
the  merchandise  by  establishing  an  equitable  estoppel,  founded 
upon  the  acts  of  the  plaintiffs,  and  in  the  application  of  the 
rule  applied  by  the  judge  at  the  circuit,  by  which,  as  between 
two  persons  equally  innocent,  a  loss  resulting  from  the  fraud- 
ulent acts  of  another  shall  rest  upon  him  by  whose  act  or 
omission  the  fraud  has  been  made  possible.  This  rule,  general 
in  its  terms,  only  operates  to  protect  those  who,  in  dealing 
with  others,  exercise  ordinary  caution  and  prudence,  and  who 
deal  in  the  ordinary  way  and  in  the  usual  course  of  business 
and  upon  the  ordinary  evidences  of  right  and  authority  in 
those  with  whom  they  deal,  and  as  against  those  who  have 
voluntarily  conferred  upon  others  the  usual  evidences  or  indicia 
of  ownership  of  property,  or  an  apparent  authority  to  deal 
with  and  dispose  of  it.  In  such  case,  for  obvious  reasons,  the 
law  raises  an  equitable  estoppel,  and  as  against  the  real  owner, 
declares  that  the  apparent  title  and  authority  which  exists  by 
his  act  or  omission  shall  quoad  persons  acting  and  parting 
with  value  upon  the  faith  of  it,  stand  for  and  be  regarded  as 
the  real  title  and  authority.  It  is  not  every  parting  with  the 
possession  of  chattels  or  the  documentary  evidence  of  title 
that  will  enable  the  possessor  to  make  a  good  title  to  one  who 
may  purchase  from  him.  So  far  as  such  a  parting  with  the 
possession  is  necessary  in  the  business  of  life,  or  authorized  by 
the  custom  of  trade,  the  owner  of  the  goods  will  not  be  affected 
by  a  sale  by  the  one  having  the  custody  and  manual  possession. 
Dyer  v.  Pearson,  3  B.  &  C.  3S;  Newsom  v.  Thornton,  6  East, 
17;  Taylor  v.  Kymer,  3  Barn.  &  Adol.  320;  Ballard  v. 
Burgett,  40  N.  Y.  314.  But  the  owner  must  go  farther,  and 
do  some  act  of  a  nature  to  mislead  third  persons  as  to  the  true 
position  of  the  title.     Pickering  v.  Busk,  15  East,  38. 


^ 


lOPEUTY, 

,1  delivery  ot 
elivery,  so  a^ 
:he    sale    and 

the  case  of  a 
ts  overt,  and 
ir  law,  whicli 
le  of  caveat 
need    not   bo 

;  plaintiffs  to 
ipel,  founded 
cation  of  the 
1,  as  between 
om  the  fraiid- 
vhose    act    or 

1  rule,  general 
3,  in  dealing 
ice,  and  who 
e  of  business 

authority  in 
ise  who  have 
ices  or  indicia 
ority  to  deal 
s  reasons,  the 
le  real  owner, 
hich  exists  by 
f  and  parting 
:  regarded  as 
rting  with  the 
3ence   of  title 

2  to  one  who 
ting  with  the 
authorized  by 
lot  be  affected 
lal  possession, 
irnton,  6  East, 
>;  Ballard  v. 
o  farther,  and 

as  to  the  true 

,38- 


BAHNAHD    V.    CAMPnni.I, 


567 


Two  things  must  concur  to  create  an  estoppel  by  which  an 
owner  may  be  deprived  of  his  property,  by  the  act  of  a  tliird 
person,  without  his  assent,  under  the  rule  now  considered. 
I.  The  owner  must  clothe  the  person  assuming  to  dispose  of 
tlie  property  with  the  apparent  title  to,  or  authority  to  dispose 
,)f  it;  and,  2.  The  person  alleging  the  estoppel  must  have- 
;ictcd  and  parted  with  value  upon  the  faith  of  such  apparent 
ownership  or  authority,  so  that  he  will  be  the  loser  if  the 
appearances  to  which  he  trusted  are  not  real.  In  this  respect 
it  does  not  differ  from  other  estoppels  in  pais.  Weaver  v. 
Harden,  49  N.  Y.  2S6;  McGoldrick  v,  Willits,  53  Id.  613; 
City  Bank  v.  R.,  W.  &  O.  R.  Co.,  44  Id.  136;  Saltus  v. 
Everett,  30  Wend.  267,  32  Am.  Dec.  541;  Woostcr  v.  Sher- 
wood, 35  N.  Y.  27S;   Blower  V.  Peabody,  13  Id.  121. 

In  the  case  before  lis  every  element  of  an  estoppel  is  want- 
ing, and  no  case  was  made  for  the  application  of  the  rule  by 
which,  under  some  circumstances,  one,  rather  than  the  other 
of  two  innocent  persons,  is  made  to  bear  the  loss  occasioned 
by  the  fraud  of  a  third  person. 

The  defendants  consummated   their  purchase  from  Jeffries, 
acting  through  his  broker  in  New  York,  and  paid  for  the  mer- 
chandise by  remitting,  at  his  request,  directly  to  Jeffries  on  the 
twenty-first  of  August,  at  which  time  Jewries  had  neither  the 
possession   nor  right    of  possession  of    the    property,   nor  any 
documentary  evidence  of  title  or  any  indicia  of  ownership,  or 
of  dominion  over  the   property  of   any   kind.     The    plaintiffs 
had  done  nothing  to  induce   the  defendants  to  put  faith    in  or 
give  credit  to  the  claim  of  Jeffries  of  the  right  to  sell  the  prop- 
erty.    The  defendants  then  parted   with  the  consideration  for 
the  purchase  of  the  seed,  not  upon  the  apparent  ownership  of 
Jeffries,  but  upon  his  assertion  of  right  of  which  the   plaintiff* 
had  no  knowledge,  and  for  which  they  are   not   responsible. 
Neither  did  the  defendants  at  any  time  do  or  forbear  to  do  any 
act  in  reliance  upon  the  apparent  ownership  of  the  property  by 
feffries,  or  induced  by  any  act  or  declaration   of  the  plaintiffs, 
in  Knights  v.    Wiffen,  L.  R.,  5    Q.  B.  660,   the  plaintiff  was 
induced  to  rest  satisfied  under  the  belief  that  he  had  acquired 
title  to  the  property  purchased,  and  so  to  alter  his  position,  by 
abstaining  from  proceedings  to  recover  back  the  money  which 
he  had  paid  to  his  vendor,  by  the  declaration  of  the  defendant 


5(iS      MODES  OF  ODTAINING  TITLE  TO  PEnSONAI.  mOI-EnTY. 

that  it  was  all  ii<,'lit,  and  his  promise  that  when  the  fonvardinrr 
note  should  be  received  ho  would   put  the  barley  on   the  line. 
The  defendants  here  at  no  time  had   any  declaration   or  state- 
ment of  the  plaintiffs  upon  which  to  rely,  and    were  not  led  to 
act  or  forbear  to   act   by  any  documentary  evidence  of   title  m 
Jeffries  emanatins  from   them.     There   is  a  manifest  .-quity  in 
holdin}-;  the  owner  of  property  estopped  from   assertinj?  title  as 
against    one    who,   for    value    actually  paid,   has    purchased  it 
from  one  havinjj,  by  the   voluntary    act   or   negliKcnce  of  the 
owner,  tlio  apparent  title   with   rifjht  of  disposal,  but  with  tliis 
limitation  there  is  no  hardship  in  holding  to  the  rule  that  the 
right  of  property  in  chattels  can  not  be  transferred  unless  on 
the  ground   of  authority  or  title.     Public  policy  requires  that 
purchasers  of  property  should  be  vigilant  and  cautious,  at  least 
to  the  extent  of  seeing  that  their  vendors  have  some  and  the 
usual  evidence  of  title,  and  if  they  are  content  to  rest  upon 
their  declarations  they  may   not  impose  the  loss,  which  is  the 
result  of  their  own   incautiousness  or  credulity,   on  another. 
The  payment  for  or  parting  with  value  for  the  goods  by  the 
purchaser  from  the  fraudulent  vendee  lays   at  the  foundation 
of  the  estoppel,  for  if  he  has  parted  with  nothing,  he  can  lose 
nothing  by  the  retaking  of  the  goods  by  the  original  owner, 
and  that  payment  must  be  occasioned  by  the  acts  or  omissions 
of  such  owner.     It  is  the  payment  that  creates  the  estoppel, 
and  if  that  is  not  made  in  reliance  on  the  acts  of  the  owner, 
the    latter   is  not   and   can    not,  in    the    nature    of    things,  be 
estopped. 

The  order  granting  a  new  trial  must  be  affirmed,  and  judg- 
ment .ibsolute  for  the  plaintiffs. 

All  concur. 

MOTION  FOR  RE- ARGUMENT. 


Allen,  J. — The  question  considered  by  this  court,  and  dis- 
cussed in  the  opinion  delivered  on  giving  judgment  upon  this 
appeal  was  that  distinctly  presented  by  the  exceptions  to  the 
ruling  and  decision  of  the  judge  upon  the  trial,  and  as  that  was 
decisive  and  led  to  an  affirmance  of  the  order  granting  a  new 
trial,  and  a  final  judgment  for  the  plaintiffs,  it  was  not  deemed 
necessary,  in  assigning  the  reasons  for  the  judgment,  to  canvass 
particularly  the  argument,  or  review  in   detail   the  authorities 


f'f 


ii'ehty. 

forsvarditifj 
•n  the  line, 
jn  or  state- 
e  not  led  to 
of  title  in 
;st  (Hjuity  in 
rtinpj  title  as 
lurcliased  it 
encc  of  the 
)ut  with  tliis 
iile  that  the 
d  unless  on 
eqiiiies  that 
ous,  at  least 
me  and  the 

0  rest  upon 
which  is  the 
on  another, 
cods  by  the 

1  foundation 
he  can  lose 
jinal  owner, 
or  omissions 
he  estoppel, 
if  the  owner, 
E    things,  be 


d,  and  judg- 


urt,  and  d!s- 
nt  upon  this 
(tions  to  the 
1  as  that  was 
inting  a  new 
not  deemed 
it,  to  canvass 
£  authorities 


i 


I 


BAnNARD   V.    CAMPHKLL. 


569 


cited  by  counsel  upon  a  somewhat  different  view   of   the   case. 
The  entire  brief,  and  all  the  authorities  cited,  were  neverthe- 
K-ss  carefully  esamined    and   considered;     and    had    the    court 
;i,|(>pted  the  views  of  the  learned  counsel  for  the  appellants,  it 
is  possible  a  way  might  have  been  found  to  sr.stain  the  defend- 
:ints'  claim  to  the  property,  notwithstanding  the  pointed  excep- 
tions to  propositions  in  the  instructions  to  the  jury,  which  were 
deemed  erroneous.      The  case  has  been  again  carefully  exam- 
ined,  and   upon  the  theory  of  the  coimscl  for  the  appellants, 
and  with   the   aid   of   his  very  able  brief,   submitted  upon  the 
present  motion,  and  the  court  sees  no  reason  to  interfere  with 
the  judgment  already  given.      It  is  proper  to  say  that  the  uni..:ual 
delay  in   passing  upon   the  present   application  has  not  b<.v;i 
because  of  any   intrinsic  ditTicnlties  in  the  question  prcseiU:, 
or  anv  serious  doi'.bt  as  to  the  correctness  of  the  former  decl:,ion. 
Isolated  expressions  may  be  found  in  elementary  treatises,  as 
well  as  in  judicial  opinions,  which  give  color  to  the  claim  of 
tlie  defendants,  to  hold  the  property  in  dispute  as  against  the 
plaintiffs,  but  these  were  not  intended  to  and  do  not  give  the 
rule  by  which  this  and  like  cases  are  controlled.     They  are  all 
proper  in  the  connection  in  which  they  are  found  and  for  the 
purposes  for  which  they  were  used,   and  ought  not  to   receive 
any   other    interpretation   than  such   as  ^as    designed   by  the 
authors.     It  must  be  conceded  that  upon  the  delivery   of  the 
goods  to  Jeffries  by  the  plaintiffs,  under  the  circumstances,  the 
property  passed  to  Jeffries,  and  the  fact  th.it  the  delivery  was 
induced  by  fraud    did    not  render  the   contract  void.     It  was 
merely  voidable  at  the  instance  of   the   plaintiffs,   who  might 
elect  to  disaffirm  the  contract  and  reclaim  the  property.     That 
is,    the    contract    of    sale    was  defeasible   at  the  election    of 
the  plaintiffs,  the  vendors,  if  the  election  was  seasonably  made, 
and  the  goods  vpclaimed  in  proper  time  after  the  discovery  of 
the  fraud.     The    plaintiffs    could    lose   the  right  by  delay  as 
against    the  wrongdoer,    if   in   consequence   of   such  delay  his 
position  should  be  changed,  and  they  would  have  lost  it  abso- 
lutely if,  during  the  interval  between  the  delivery  of  the  goods, 
the  vesting  of  this  defeasible  title  in  the  purchaser,  Jeffries,  and 
the  disaffirmance  of  the  sale  by  the   plaintiffs,   the   goods  had 
been  sold  to  an  innocent  third  party  for  a  valuable   considera- 
tion.    The  superior  equity  of  a  purchaser  of  property  from  one 


■ 


57<>       MODKS  or   OIITAININC;   TITJ  K    lO  I'KUSONAI.  PHOPKKTV. 


will)  lias  acfiiiiroil  a  title  (k-foasihlc  at  the  election  of  tlic  former 
owner  and  vendor,  Viy  reason  of  fraud,  to  that  of  such  owner 
seekin<i  to  reclaim  his  property,  is  based  upon  the  fiict  that 
actinji  upon  the  evidence  of  title  which  the  owner  has  permitted 
the  wrongdoer  to  assume  and  possess,  he  has  been  induced  to 
part  with  value,  and  will  be  the  loser  because  of  the  credit 
jrivcn  to  the  apparent  ownership  if  he  is  compelled  to  surrender 
the  property.  The  mere  possession  by  the  party  claiming  to 
hold  will  not  sustain  his  claim,  but  the  circumstances  under 
and  consideration  upon  which  he  has  acquired  the  possession 
are  also  material.  Were  it  otherwise,  an  assignee  for  the  ben- 
elit  of  creditors,  or  one  who  should  take  as  collateral  security 
for  Uie  payment  of  a  precedent  debt,  would  hold  as  against  the 
original  owner,  which  is  not  claimed  and  is  contrary  to  the 
whole  current  of  authority.  .Several  things  must  concur  to  bar 
the  claim  nf  the  defrauded  vendor:  i.  He  must  have  parted 
with  possession  of  his  property  with  intent  to  pass  the  title  to 
the  wrongdoer,  thus  giving  him  the  apparent  right  of  disposal. 
If  property  is  taken  feloniously  or  without  the  consent  of  the 
owner  the  taker  can  make  no  title  to  it,  even  to  an  innocent 
purchaser  with  value.  2.  A  third  party  must  have  acquired 
title  from  the  wrongdoer  without  notice  of  the  defects  in  his 
title  or  knowledge  of  circumstances  to  put  him  to  an  inquiry 
as  to  the  source  of  his  title.  And,  3.  Such  third  party  must 
have  parted  with  value  upon  the  faith  of  the  apparent  title  of 
the  wrongdoer,  and  his  right  to  dispose  of  the  property.  If 
any  of  these  elements  arc  wanting,  the  vendor  seasonably  pur- 
suing his  legal  right  may  have  his  property.  That  this  formula 
very  closely  resembles  that  by  which  an  estoppel  in  pais  is 
defined  and  limited  is  true,  and  this  must  neces.  arily  be  so,  so 
long  as  the  rights  based  upon  each  have  the  same  equitable 
foundation.  The  defendants  parted  with  no  value,  incurred  no 
liability,  and  in  no  respect  changed  their  situation  in  the  inter- 
val between  the  delivery  of  the  merchandise  by  the  plaintiffs  to 
Jeffries,  and  their  disailirmancc  of  the  contract,  and  reclaiming 
the  goods.  In  other  words,  they  did  nothing  in  consequence 
of  such  delivery  to  Jeffries  or  based  upon  his  title  and  posses- 
sion, and  are  in  precisely  the  same  situation  as  if  the  goods  had 
never  left  the  possession  of  the  plaintiffs.  They  parted  with 
their  notes  and  incurred  ol)ligations  upon  the  faith  of  the  prom- 
ise and  agreement  of  Jeffries  and  upon  his  credit  alone. 


I 


:)rKnTY. 

f  tlic  former 

such  owner 
he  fact  tliat 
as  permitted 
1  induced  to 
f  the  credit 
to  surrender 

claiming  to 
ances  under 
!   possession 

for  the  ben- 
3ral  security 
i  ajjainst  the 
itrary  to  the 
oncur  to  bar 
have  parted 
i  the  title  to 

of  disposal, 
nsent  of  the 
an  innocent 
ive  acquired 
efects  in  his 
I   an    inquiry 

party  must 
irent  title  of 
)roperty.  If 
sonably  pur- 
:  this  formula 
;]  in  pais  is 
rily  be  so,  so 
me  equitable 
,  incurred  no 

in  the  inter- 
;  plaintiffs  to 
d  reclaiming 
consequence 

and  posses- 
he  goods  had 

parted  with 
of  the  prom- 
lone. 


nAUNMIl)    V.    I  AMI'llEt.!,. 


.■>/ 


8 


It  is  possible  that  tlie  claim  of  the  defendants  to  hold  as  bona 
ilde  purchasers  for  value  is  sustained  by  Fenby  v.   I'ritchard,  2 
Sandf.  151,  but  this  case  is  so  at  war  with  principles  rccogiiizfd 
as  well  settled  by  this  court  in  analogous  cases,   that  it  can  not 
be  regarded  as  well  decided.      The  cases  cited  from  Maine  and 
Illinois  (Lee  V.  Kimball,  15  Me.    17^;    Mutters  v.  llaughwout, 
42  111.  iS,  S9  Am.  Dec.  401),  treat  the  case  as  analogous  to  a 
transfer  of  negfiliable  paper,  and  liold  that  a  precedent  debt  is 
a  valuable  consideration  for  the  transfer,  and  gives  the  trans- 
feree a  good  title   as   against    the    former   owner.     This  is  in 
direct  conflict  with  the  uniform  decisions  in  this  state,  from  Ilay 
V.  Coddington,  5  Johns.  Ch.    54,   9   Am.  Dec.  Jf'nS ;   alHrmed, 
:n  Johns.  637;   to  Weaver  v.  Harden.  49  N.  ^'.  3S6;   afHrmed, 
Turner  v.  Treadway,  53  Id.  650.     One  other  case  from  Maine 
cited  bv  the  cf)unsel  for  the  appellants  (Titcomb  v.   Wood,  3S 
Me.  561)  recognizes  the  necessity  of  a  valuable  consideration, 
as  that  term  is  understood  and  used  by  the  courts  of  this  state 
as  necessary  to  give  the  purchaser  of  property  from  a  fraudu- 
lent  vendor  a  superior  equity   and  title  to  that  of  the  former 
owner,  and  find  such  a  consideration  in  the  transfer  of  property 
before   then    stolen    from    the    defendant.     The    courts    say: 
"Here  the  defendant  being  the  owner  of  stolen  property,  with 
his  right  and  title  unimpaired  by  the  felony,  transferred  it  to 
McClure  for  the  property  in  question,  in  part  payment  at  least. 
This   constituted  a  valuable    consideration    tor   his    purchase, 
given  at  the  time.     Thus  it  appears  that  he  was  a  purchaser  of 
the  gold  watch,  bona  fide,  for   a   valuable  consideration,  and 
without  notice  of  the    fraud   by   which   his  vendor   acquired  it. 
This  gives  him  a  superior  equity  and  a  better  right,  and  enables 
him  to  hold  the  property  against  the  defrauded  vendor."     Iiut- 
ton  V.  Cruttwell,  i  El.  &  HI.  15;  and   Mercer  v.   Peterson,  L. 
R.,  3  l'2xch.  304,  relied  upon   in   support   of    this    application, 
presented   questions    under    the    English   Bankrupt   Acts,   and 
merely  decided  that  a  transfer  of  effects,  by  the  bankrupt,  in 
performance  of  a  prior  executory  agreement,   for  which  a  full 
consideration  had  been  paid  at  the  time  of  the  agreement,  was 
not  within  the  condemn.ition  of  the  act  or  affected  by  the  pro- 
ceedings in  bankruptcy.     They  do  not  bear  upon  the  question 
'ifore  u^.     In  Clough  v.  London,  etc.,  R.  Co.,  J^.  R.,  7  Exch. 
26,  I  Eng.  Rep.    148,  the  question  was  whether  the  claim  to 


572       MODES  OK  OBTAINING  TITLE  TO  I'EUSONAL  PUOPERTV. 

disaffirm  the  sale  of  the  goods  was  seasonably  made  by  the 
defrauded  vendor.  The  vendor  had  first  sought  to  stop  the 
2-oods  in  transitu,  which  was  an  act  in  affirmance  of  the  sale; 
but  the  transit  was  ended  before  notice  reached  the  carrier. 
There  was  no  ac^  avoiding  the  contract  on  the  ground  0£  fraud 
done  by  the  vendor,  until  the  plea  in  the  action  by  Clough,  who 
was  found  by  the  jury  to  be  cognizant  of,  and  a  party  to  the 
fraud  in  the  purchase.  No  question  of  consideration  or  the 
validity  of  anv  sale  of  the  goods  by  the  fraudulent  purchaser 
was  in  the  case,  or  considered  by  the  court.  Durbrow  v. 
McDomld,  5  Bosw.  130;  s.  c,  sub  nom.  Winne  v.  McDon- 
ald. 39  N.  V.  233,  was  clearly  within  the  rule  upon  the  inter- 
pretation given  to  the  transaction  by  the  courts.  It  was  said  by 
the  superior  court  that  Perry  &  Company,  the  purchasers  of  the 
wheat,  had  the  full  possession  of  it  in  the  precise  manner  that 
the  contract  between  them  and  the  plaintiffs  contemplated,  and 
that  the  purchase  and  possession  of  Perry  were  such  as  to  enable 
him  to  confer  upon  a  bona  fide  purchaser,  a  pledgee  for  value, 
a  title  valid  as  against  the  plaintiffs;  and  that  the  advance  was 
made  by  the  defendants  after  the  delivery  to  Perry  &  Comjjany 
of  the  documentary  evidence  of  title,  and  the  wheat  pledged  as 
security  at  the  time  of  the  ,  dvance.  The  evidence  upon  the 
record  in  this  court,  it  would  seem,  left  the  precise  time  when 
some  of  the  occurrences  tcok  place  in  doubt,  but  that  the  spe- 
cific wheat  was  pledged,  at  the  time  of  the  advance,  was  estab- 
lished, although  possibly  the  muniments  of  title  were  not  then 
delivered.  The  title  and  possession  had  vested  in  Perry  & 
Company  at  the  time  of  the  pledge ;  and  that  fact  clearly  dis- 
tinguished that  from  the  present  case. 

Judge  Bosworth,  in  Caldwell  v.  Bartlctt,  3  Duer,  341,  and 
Keyser  v.  Harbeck,  Id.  373,  recognizes  the  doctrine  that  the 
advance  must  be  made  or  consideration  parted  with  upon  the 
faitli  of  the  title  of  one  in  actual  possession  of  the  property,  or 
the  written  evidence  of  title,  to  give  an  indefeasible  title  as 
a<^ainst  the  true  owner.  All  the  authorities  are  direct  and  to 
the  effect  that  no  one  but  a  bona  fide  purchaser,  or  pledgee  for 
value — that  is,  one  who  gives  vnUie  for  or  makes  advances 
upon  goods  obtained  from  the  owner  by  fraud  or  fraudulent 
representation — and  that  he  who  has  paid  value,  pr  made 
advances,  or  incurred  responsibilities  upon  the  credit  of  them, 


ONAL  PUOPERTV. 

onably    made  by  the 

sought   to   stop  the 

irmance  of  the  sale; 

leached   the   carrier. 

the  ground  cr  fraud 

ction  by  Clough,  who 

,    and   a  party  to  the 

consideration   or   the 

fraudulent  purchaser 

court.     Durbrow   v. 

.   Winne  v.  McDon- 

i  rule  upon  the  inter- 

aurts.     It  was  said  by 

the  purchasers  of  the 

precise  manner  that 

ffs  contemplated,  and 

were  such  as  to  enable 

a  pledgee  for  value, 

that  the  advance  was 

to  Perry  &  Comjjany 

the  wheat  pledged  as 

le  evidence  upon  the 

lie  precise  time  when 

lubt,  but  that  the  spe- 

e  advance,  was  estab- 

of  title  were  not  then 

i\  vested  in    Perry   & 

d  that  fact  clearly  dis- 

ett,  3  Duer,  341,  and 
the  doctrine  that  the 
parted  with  upon  the 
n  of  the  property,  or 
1  indefeasible  title  as 
ies  are  direct  and  to 
chaser,  or  pledgee  for 
r  or  makes  advances 
r  fraud  or  fraudulent 
paid  value,  pr  made 
n  the  credit  of  them, 


GROSS    V.    KIKRSKl. 


D/3 


can  alone  claim  to  hold  them  as  against  such  owner.  Root  v. 
French,  13  Wend.  573,  2S  Am.  Dec.  4S2;  ^^owrey  v.  Walsh, 
S  Cow.  23S;  Hoffman  v.  Noble,  6  Mete.  68,  39  Am.  Dec. 
711.  There  is  no  good  reason  or  equity  in  placing  the  burden 
of  a  fraudulent  sale  upon  a  bona  fide  vendor  rather  than  upon 
a  bona  fide  purchaser  from  the  fraudulent  vendee,  unless  the 
purchaser  has  parted  with  his  money,  or  some  value,  upon  the 
credit  of  possession  c  .,ome  e\  idence  of  title  in  the  vendee, 
received  from  the  original  owner,  and  by  means  of  which  he 
lias  induced  the  purchaser  to  treat  with  him  as  owner. 

The  motion  for  a  re-argument  must  be  denied. 

All  conci'r,  except  Johnson,  J.,  not  sitting. 

CoNSULT--Edmunds  v.  Trans.  Co.,  135  Mass.  283;  Old  Dominion 
Steam  Co.  v.  Burkhardt,  31  Gratt.  664;  Devoe  v.  Brandt,  53  N.  Y.  462; 
Legrand  v.  Nat.  Bank,  81  Ala.  126,  60  Am.  Rep.  140;  Lynch  v.  Beecher, 
38  Conn.  490;  Ohio,  etc.,  R.  Co.  v.  Kerr,  40 111.  45S;  Cochran  v.  Stewart, 
21  Minn.  435 ;  Wineland  v.  Coonce,  5  Mo.  296,  32  Am.  Dec.  320;  Barker 
V.  Dinsmore,  72  Pa.  St.  427,  13  Am.  Rep.  697;  Rodliff  v.  Dallenger,  141 
Mass.  6,  55  Am.  Rep.  439. 


^.      Warranties. 

§  96.    Implied  warranty  of  t?  tie. 

GROSS  V.  KIERSKI. 

[41  Cal.  III.] 

Supreme  Court  of  California,  1871, 

Wallace,  J. — The  defendant,  a  dealer  in  musical  instru- 
ments, sold  and  delivered  to  the  plaintiff  a  piano-forte,  nothing 
being  said  at  the  time  coiicerning  the  title  to  the  chattel.  This 
was  in  February,  1S67.  In  August,  iS^^,  certain  persons, 
claiming  and  ultimately  showing  ♦^hemselves  to  be  the  owners 
of  the  chattel,  commenced  an  action  against  Gross  for  its 
recovery.  The  latter  thereupon  g.ive  notice  to  his  vendor,  the 
defendant,  of  the  bringing  of  the  action.  In  September  follow- 
ing judgment  passed  against  Gross.  In  October  the  piano-forte 
was  taken  from  his  possession,  and  in  November,  1S69,  he 
brought  the  present  action  against  Kierski  for  breach   of  the 


574       MODKS  OK  OHTAIXING  TITl.E  TO   I'KKSONAL  PROPERTY. 

warranty  of  title  to  the  chattel.  The  court  below  gave  jinlg- 
inent  for  the  plaintiff,  and  tc  reverse  that  judgment  this  appeal 
is  brought. 

The  vendor  of  goods  and  chattels  in  possession  is  held,  by 
implication  of  law,  to  warrant  the  title.  This  rule  was  recog- 
nized l)y  this  court  'n  the  case  of  Miller  v.  Van  Tassel,  24  Cal. 
45S,  and  may  be  said  to  have  become  firmly  ingrafted  in  the 
jurisprudence  of  this  country,  whatever  may  be  the  doubts  at 
present  surrounding  it  in  England,  as  indicated  in  the  recent 
cases  of  Morley  v.  Attcnborough,  3  Welsliy,  Ilurlstone  &  Gor- 
don Exch.  R.  507,  and  .Sims  v.  Marryat,  17  Q.  B.  290,  where 
it  was  said  by  Lord  Campbell,  C.  J.,  that  "on  that  point  the 
law  is  not  in  a  satisfactory  state." 

In  the  case  at  bar  this  general  rule  is  not  questioned  by  the 
defendant,  but  it  is  claimed  that  the  action  here  was  not  brought 
within  two  years  next  after  the  breach  of  the  warranty,  and  is, 
therefore,  barred  by  the  statute  of  limitations,  which  was 
pleaded  below,  and  is  insisted  upon  in  this  court;  and  this 
presents  the  only  question  to  be  determined. 

The  statute  undoubtedly  commenced  to  run  from  the  earliest 
time  at  which  the  plaintiff  might  have  sued.  This  would,  of 
course,  be  that  period  at  which  the  breach  must  be  considered 
to  have  happened.  And  this  is  the  precise  question  upon  which 
the  parties  are  at  issue  here — the  defendant  claiming  that  his 
warranty  was  broken  in  February,  1867,  when  he  sold  and 
delivered  the  chattel,  and  the  plaintiff  insisting  that  the  breach 
did  not  occur  until  October,  1S69,  when  the  property  was  taken 
by  the  true  owner. 

In  an  action  brought  against  the  vendor  of  chattels  upon  an 
express  warranty  of  title,  the  authorities  are  believed  to  be 
uniform  upon  the  point  that  there  is  no  breach  in  contempla- 
tion of  law  until  the  vendee's  jiossession  of  the  goods  is  in  some 
way  disturbed,  by  reason  of  the  title  of  the  true  owner. 

No  substantial  difference  in  this  respect  is  perceived  between 
an  express  warranty  of  title  made  by  a  vendor  upon  sale  of 
chattels  out  of  possession  and  the  warranty  of  title  implied  by 
law  upon  a  sale  of  goods  in  possession.  The  fact  of  the  goods 
being  out  of  the  possession  of  the  vendor  may  well  be  con- 
sidered to  put  the  vendee  upon  his  guard,  and  it  is  his  own 
folly  if,  under  such  circumstances,  he  will  not  protect  himself 


IIOPEKTY. 

V  gave  jml}?- 
it  this  appeal 

n  is  hel'l,  by 
le  was  lecoi^- 
asscl,  24  Cal. 
j^iatted  in  the 
the  doubts  at 
in  the  recent 
Istone  &  Gor- 
i.  J90,  where 
hat  point  the 

itioned  by  the 
as  not  brought 
•anty,  and  is, 
,  which  was 
urt ;   and  this 

m  the  earliest 
his  would,  o£ 
be  considered 
n  upon  which 
ning  that  his 
he  sold  and 
lat  the  breach 
rty  was  taken 

ttels  upon  an 
elieved  to  be 
n  contempla- 
Dds  is  in  some 
wner. 

;ived  between 
upon  sale  of 
le  implied  by 
t  of  the  goods 
well  be  con- 
it  is  his  own 
rotect  himself 


GROSS    V.    KIEUSKl. 


575 


by  exacting  an   express  agreement  to   warrant  the  title.      The 
doctrine  of  caveat  emptor  would  apply  to  such  a  case. 

But  when  the  goods  are  at  the  time  in  the  possession  of  the 
vendor,  who  deals  with  them  as  owner,  and  under  such  circum- 
stances sells  and  delivers  them  to  the  purchaser,  the  law  will 
imply  against  the  vendor  that  he  warrants  the  title  to  the 
property  sold.  This  implication  is  indulged  for  the  protection 
of  the  purchaser  against  what  would  otherwise  be  the  fraud  of 
the  vendor,  practiced  upon  him  when  he  is  himself  not  charge- 
able with  negligence;  for  it  is  unreasonable  to  exact  of  the 
purchaser  of  goods  that  he  is  in  every  case  to  institute  an 
inquiry  into  the  title  of  his  merchant,  upon  pain  of  losing 
both  the  goods  and  their  price.  The  purpose  of  the  law  in 
implying  the  warranty  is  the  protection  of  the  purchaser;  it 
determines  that  the  vendor  did  warrant  the  title  to  the  goods, 
itecause  it  considers  that,  under  the  circumstances,  he  ought  to 
have  done  so.  It  declares  that  his  silence  shall  be  taken  to  be 
a  warranty  of  the  soundness  of  his  title.  The  sale  and  delivery 
of  the  goods  in  possession,  where  nothing  is  said  about  the 
title,  is,  therefore,  precisely  equivalent  to  an  express  warranty 
of  title,  and,  the  facts  being  ascertained,  the  rights  and  liabil- 
ities of  the  parties  are  exactly  the  same. 

It  is  true  that  the  court  of  appeals  of  Kentucky  hold  that 
there  is  a  distinction  between  an  express  warranty  of  title  to 
chattels  and  the  warranty  of  title  implied  by  law.  The  express 
warranty  is  likened  to  a  covenant  to  warrant  and  defend  the 
title,  when  inserted  in  a  deed  of  conveyance  of  lands,  and  is, 
therefore,  said  to  be  unbroken  until  an  eviction  by  the  true 
owner,  under  paramount  title,  has  taken  place.  The  implied 
warranty  is,  however,  compared  to  a  covenant  of  seizin,  which 
is  said  to  be  broken,  if  at  all,  at  the  instant  that  it  is  entered 
into.  As  a  consequence,  it  is  the  settled  rule  in  that  state  that 
the  statute  of  limitations,  upon  breach  of  an  express  warranty 
of  title  to  personal  property,  commences  to  run  from  the  time 
when  the  vendee  is  disturbed  ;  while  in  case  of  implied  warranty 
it  is  set  in  motion  instantly  upon  the  sale  and  delivery  of  the 
;4oods.  4  Bibb.  304;  3  Marsh,  317;  4  B.  Monroe,  201;  i 
Mctc.  Ky.  R.  572.  For  the  distinction  thus  made  I  think  that 
no  good  reason  can  be  shown.  Its  operation  would,  in  many 
instances,  deprive  the  purchaser  of  the  very  protection  which  it 


57''       MODKS  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

is  the  purpose  of  the  implication  to  afford.  Nor  is  it  clear  that 
the  analogy  supposed  to  exist  between  the  covenant  of  seizin 
and  the  implied  warranty  of  chattels  can  be  maintained.  Mr. 
Rawle,  in  his  treatise  on  the  covenant  of  seizin  (Rawle  on  Cov. , 
[t,  Ed.]  50),  assumes  that  the  implied  warranty  of  title  to  chat- 
tels is  understood  to  be  "a  title  sufficient  to  retain  the  posses- 
sion in  the  vendee  of  the  chattels,"  and  in  illustration  of  the 
distinction  between  seizin  in  fact  and  seizin  in  law,  as  to  real 
property,  he  says:  "An  analogy  may  be  found  in  the  rule  with 
respect  to  chattels.  In  the  sale  of  these  a  warranty  of  title  is 
implied  by  the  civil  and  the  common  law.  *  »  *  Yet  a 
subsequent  loss  of  possession  by  title  paramount  will  be  a 
breach  of  this  warranty,  because  the  vendor  is  understood  to 
have  agreed  lawfully  to  transfer  a  possession  which  can  be 
retained."  etc. 

The  doctrine  of  the  court  of  appeals  of  Kentucky  is  believed 
to  be  unsupported  either  by  text-writers  upon  the  law  or  the 
adjudications  of  the  courts  of  other  states  of  the  Union. 

In  Word  v.  Cavin,  i  Head,  507,  the  supreme  court  of  Ten- 
nessee held  that,  upon  breach  of  the  implied  warranty  of  title 
to  chattels,  the  statute  of  limitations  commenced  to  run  upon 
the  possession  of  the  chattel  being  lost,  or  upon  voluntary  offer 
by  the  vendee  to  restore  it  to  the  seller.  Linton  v.  Porter,  31 
III.  107,  was  an  action  upon  a  promissory  note  given  upon  the 
purchase  of  a  chattel  with  implied  warranty  of  title.  The 
supreme  court  of  Illinois  held  that  it  was  no  defense  to  say  that 
the  vendor  had  no  title  while  the  possession  of  the  vendee 
remained  undisturbed  by  the  true  owner.  In  Case  v.  Hall,  24 
Wend.  102,  upon  a  state  of  facts  substantially  similar  to  those 
in  Linton  v.  Porter,  the  defense  was  overruled  on  the  ground 
that  where  the  vendee  relies  upon  the  warranty  of  title,  express 
or  implied,  there  must  be  a  recovery  by  the  real  owner  before 
an  action  can  be  maintained.  See,  also,  Vibbard  et  al.  v. 
Johnson,  19  .Johns.  77;  Story  on  Sales,  sec.  203;  Parsons 
Merc.  Law  [2  Ed.],  50,  and  cases  there  cited  in  note;  Hilliard 
on  Sales  [3  Ed.],  391,  and  cases  cited  in  note. 


^m 


I'ROPERTY. 

is  it  clear  that 
nant  of  seizin 
ntaincd.     Mr. 

awle  on  Cov. , 
)f  title  to  chat- 
in  the  posses- 
stration  of  the 
aw,  as  to  real 
in  the  rule  with 
nty  of  title  is 
*  *  Yet  a 
unt  will    be  a 

understood  to 

which   can  be 

cky  is  believed 
he  law  or  the 
Union. 

court  of  Ten- 
arranty  of  title 
d  to  run  upon 
voluntary  offer 
I  V.  Porter,  31 
given  upon  the 
of  title.  The 
jnse  to  say  that 
of  the  vendee 
ise  V.  Hall,  24 
imilar  to  those 
on  the  ground 
af  title,  express 
1  owner  before 
ibard  et  al.  v. 
203 ;  Parsons 
note ;   Hilliard 


EICHHOLZ    V.    BANNISTER. 


577 


It  results  from  these  views  that  the  plaintiff's  cause  of  action 
accrued  upon  the  loss  of  the  chattel  in  October,  1S69,  and  the 
statute  of  limitations  will  not  avail  the  defendant. 

Judgment  affirmed. 

Consult — Scranton  v.  Clark,  39  N.  Y.  220,  100  Am.  Dec.  430; 
Whitney  v.  Ileywooil,  6  Cush.  86;  Wood  v.  Sheldon,  42  N.  J.  (L.)  421; 
Iklgerton  v.  Michels,  66  Wis.  124;  Shattuck  v.  Green,  104  Mass.  42; 
'I'iiurston  V.  Spratt,  52  Me.  202;  Close  v.  Crossland,  47  Minn.  500. 


§  97.    Same— No  warrau  ^y  where  sale  is  simply  of  seller's 
interest. 

EICIIIIOLZ  V.  BANNISTER. 

[17  C.  B.  (N.  S.)  708.] 
English  Court  of  Common  Picas,  1864. 

This  was  an  action  for  money  payable  by  the  defendant  to 
the  plaintiff  for  money  received  by  the  defendant  for  the  use  of 
the  plaintiff,  for  money  paid  by  the  plaintiff  for  '■  t  defendant 
at  his  request,  and  for  money  found  to  be  due  from  the  defend- 
ant to  the  plaintiff  on  accounts  stated.  Claim,  £ic).  Plea, 
never  indebted,  whereupon  issue  was  joined. 

The  cause  was  tried  in  the  court  of  record  for  the  trial  of 
civil  actions  within  the  city  of  Manchester,  before  the  deputy 
recorder,  when  the  facts  which  appeared  in  evidence  were  as 
follows:  The  plaintiff  was  a  commission  agent  at  Manchester. 
I'lie  defendant  was  a  job  warehouseman  in  the  same  place. 
On  the  eighteenth  of  April  last,  theplaintiff  went  to  the  defend- 
ant's warehouse,  and  there  saw,  among  other  goods  which 
the  defendant  had  just  purchased,  seventeen  pieces  of  prints, 
which  he  offered  to  buy  of  him  at  S^ifd.  a  yard.  After  some 
discussion  the  defendant  agreed  to  sell  them,  and  gave  the 
plaintiff  an  invoice  in  the  following  form,  the  whole  of  which 
was  printed,  with  the  exception  of  the  parts  in  italics: 

37 


57S       MOUKS  OF  OBTAINING  TITI.K  TO  PKllSONAI.  PUOIM-KTY. 

"31  Choilioii  Street,  Portland  street, 

"Manchester,  April  18,  1S64. 

".I//-.  Eirhhoh 

"Hou<,'ht  o£  R.  Bannister,  job  warehonseman. 

"Prints,  fents,  j,'rey  fustians,  etc.     Job   and  perfect  yarns  in 
hanks,  cops,  and  bundles. 

^^i-j  piccis  of  friiits,  52  yds.  at  5  i-4iL         -  19     o  o 

"/  j-2  per  cent  for  cash         -         -         -         -  060 

"^18  14  o" 
The  plaintiff  paid  for  the  proods  before  he  left  the  warehouse 
and  the  defendant  sent  them  by  a  porter  to  the  plaintiff's  place 
of  business.  The  plaintiff  sold  the  lot  a  few  days  afterward 
fo,.  /;,y  15s.  net.  The  goods  were  subsequently  returned  to 
the  plaintiff,  ihey  having  been  recognized  as  goods  which  had 
been  stolen  from  the  premises  of  one  Krauss.  The  goods  were 
taken  possession  of  by  the  police,  and  the  thief,  one  Aspinail. 
was  tried  at  the  general  (juarter  sessions  of  the  peace  holden  in 
and  for  the  city  of  Manchester  on  the  ninth  of  May  last,  and 
convicted,  and  sentenced  to  penal  servitude  for  four  years. 

On  the  part  of  the  defendant,  it  was  objected  that  there  was 
no  case  to  go  to  the  jury,  inasmuch  as  there  is  no  implied  war- 
ranty of  title  on  the  sale  of  goods. 

For  the  plaintiff  it  was  insisted  that  he  was  entitled  to 
recover,  the  money  having  been  paid  upon  a  consideration 
wl'.ich  had  wholly  failed. 

The  learned  judge  directed  a  verdict  to  be  entered  for  the 
plaintiff  for  the  amount  claimed,  reserving  leave  to  the  defend- 
ant to  move  to  set  aside  the  verdict  and  enter  a  nonsuit  or  a 
verdict  for  the  defendant,  if  the  court  should  be  of  opinion  that 
the  plaintiff  was  not  entitled  to  recover. 

Holker,  on  a  former  day  in  this  term,  obtained  a  rule  nisi 
accordingly.     C.  Pollock  now  showed  cause. 

Eri.e  C.  T- — I  ^"^  o^  opinion  that  this  rule  should  be  dis- 
charged. The  plaintiff  brings  his  action  to  recover  back  money 
which  he  paid  for  goods  bought  by  him  in  the  shop  of  tlie 
defendant,  which  were  afterward  lawfully  claimed  from  him  by 
a  third  person,  the  true  owner,  from  whom  they  had  been 
stolen.     The  plaintiff  now  claims  to  recover  back  the  money  as 


*ll 


'ROPKRTY. 

nd  street, 
;il  iS,  1S64. 


;rfect  yarns  in 

19     o  o 
060 

";^l8    14    O" 

the  warehouse 
>laintiff's  place 
lays  afterward 
tly  returned  to 
ids  which  had 
rhe  goods  were 

one  Aspinall, 
icace  holden  in 
May  hist,  and 
'our  years. 

that  there  was 
10  implied  war- 

,as  entitled  to 
\   consideration 

entered  for  the 
;  to  the  defend- 
a  nonsuit  or  a 
of  opinion  that 

led   a  rule  ?itst 


i  should  be  dis- 
ver  back  money 
the  shop  of  the 
led  from  him  by 
they  had  been 
:k  the  money  as 


ElCmtOI.Z    V.     HANMSTKIl. 


579 


having  been  paid   by   him    upon    a    consideration   which    has 
failed.      The  jury  at  the  trial  found  a  verdict  for  the  plaintiff, 
under  the  direction  of  tlie  learned  judge  who  presided ;    and   a 
rule  has  l)een  obtained  on  behalf  of  the  defendant  to  set  aside 
that  verdict  and  lo  enter  a  nonsuit,  on  the  ground  that  it  is  part 
of  the  common  law  of  England  that  the  vendor  of  goods  by  the 
mere  contract  of  sale  does  not  warrant  his  title  to  the  goods  he 
sells,  that  the  buyer  takes  them  at  his  peril,   and  that  the  rule 
caveat  emptor  applies.      The   case    has   been   remarkably   well 
argued  on  both  sides;   and  the  court  are  much  indebted  to  the 
learned  couusel  for  the  able  assistance  tlicy   have   rentlered  to 
them.      The  result  I  have   arrived    at,    is,    that  the    plaintiff    is 
entitled  to  retain  his  verdict.     I  consider  it  to  be  clear  upon  the 
ancient  authorities,  that,  if  a  vendor   of   a    chattel    by  word  or 
conduct  gives  the  purchaser  to  understand  that  he  is  the  owner, 
that  tacit  representation  forms  part  of  the  contract,  and  that,  if 
he  is  not  the  owner,  his  contract  is  broken.     So  is  the  law  laid 
down  in  the  very  elaborate  judgment  of  Parke,   B,,   in  Morley 
v.  Attenborough,  3  Exch.  500,  513,   where  that  learned  judge 
puts  the  case  upon  which  I  ground  my  judgment.      A  difference 
is  taken  in  some  of  the  cases  between  a  warranty  and  a  condi- 
tion   (see  IJannerman  v.   White,    10  C.  B.  (X.  S.)  S44)  ;   but 
that  is  foreign  to  the  present  inquiry.     In  Morley  v.  Attenbor- 
ough, 3  Exch.  513,  Parke,    H.,    says:      "We   do   not  suppose 
that  there  would  be  any  doubt,  if  the  articles  are  bought   in  a 
shop  professedly  carried  on  for  the  sale  of  goods,  that  the  shop- 
keeper must  be  considered  as  warranting  that  those  who  pur- 
chase will  have  a  good  title  to  keep  the  goods  purchased.      In 
such  a  case  the  vendor  sells  'as  his  own,'    and   that  is  what  is 
equivalent  to  a  warranty  of  title."     No  doubt,  if  a  shopkeeper 
in  words  or  by  his  conduct  affirms  at  the  time  of  the  sale  that 
he  is  the  owner  of  the  goods,  such  affirmation  becomes  part  of 
the  contract,  and,  if  it  turns  out  that  he   is-  not  the   owner,  so 
that  the  goods  are   lost  to   the  buyer,  the  price  which  he  has 
received   may    be   recovered    back.     I  ventured  to  throw  out 
some  remarks  in  the  course  of  the  argument  upon  the  doctrine 
relied  on  by  Mr.  Ilolker,  which  he  answered  by  assertion  after 
assertion  coming  no  doubt  from  judges   of  great   authority  in 
tlie  law,  to  the   effect  that  upon  a    sale    of    goods   there  is  no 
implied  warranty  of  title.     The  passage   cited   from   Xoy  cer- 


5S0       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PltOPEUTV. 

tainlv  puts  tlie  proposition  in   a   manner  that  must  shock  the 
uucierhtaniliiif,'  of  any  ordinary  person.     But  I  take  the  princi- 
ple intended  to  be  ilUistrated  to  be  this:     I  am  in  possession  of 
a  horse  or  otlier  chattel ;    I  neither  affirm  or  deny  that  I  am  the 
owner;    if  you  choose  to  take  it  as  it  is,   without  more,  caveat 
emptor,  you  have  no  remedy,  though  it  should  turn  jut  that  I 
have  no  title.     Where  that  is  the  whole  of  the  transaction,  it 
niav  he  that  there  is  no  warranty  of  title.     Such  seems  to  have 
been   the    jjrinciple    on    which    Morley    v.    Attenborough   was 
decided.     The    pawnbroker,    when    he   sells    an    unredeemed 
l^ledge,  virtually   says:     I   have   under   the    provisions   of  the 
statute  (,vj  and  40  Geo.  III.,  c.  99,  sec.  17)  a  right  to  sell.     If 
you  choose  to  buy  the  article,  it  is  at  your  own  peril.     So,   in 
the  case  of  the  sale  by  the  sheriff   of   goods  seized  under   a  fi. 
fa. — Chapman  v.  Speller,  14  Q.  B.  621.     The  fact  of  the  sale 
taking  place  under  such  circumstances   is  notice  to  buyers  that 
the  siieriff  has  no  knowledge  of  the  title  to  the  goods ;   and  the 
buvers  consequently  buy  at  their  own  peril.     Many  contracts  of 
sale  tacitly  express  the  same  sort  of  disclaimer  of  warranty.     In 
this  sense  it  is  that  I  understand   the   decision   of   this  court  in 
Hall  V.  Conder,  2  C.   B.    (N.   S.)   22.     There,    the    plaintiff 
merely  professed  to  sell  the  patent  right  such  as  he  had  it,  and 
the  court  held  that  the  contract  might  still  be  enforced,  though 
the  patent  was  ultimately  defeated  on  the   ground  of  want  of 
novelty.     The  thing  which  was  the  subject  of  the  contract  there 
was  not  matter,  it  was  rather  in  the  nature  of  mind.     These  are 
some  of  the  cases  where  the  conduct  of  the  seller  expresses  at 
the  time  of  the  contract  that  he  merely  contracts  to  sell  such  a 
title  as  he  himself  has  in  the  thing.     But,  in  almost  all  the  trans- 
actions of  sale  in  common  life,   the  seller  by  the  very  act  of 
selling  holds  out  to  the  buyer  that  he  is  the  owner  of  the  article 
he  offers  for  sale.     The  sale  of  a  chattel   is  the  strongest  act  of 
dominion  that  is  incidental  to  ownership.      A  purchaser  under 
ordinarv  circumstances  would  naturally  be  led  to  the  conclusion 
that,  by  offering  an  article  for  sale,  the  seller  affirms  that  he 
has  title  to  sell,  and  that  the  buyer  may  enjoy  that  for  which  he 
parts  with  his  money.     Such  a   case  falls  within   the   doctrine 
stated  by  Blackstone,  and  is  so  recognized  by  Littledale,  J.,   in 
Earl  y  v.  Garrett,   9  B.    &   C.   928,  4   M.   &  R.   6S7,  and  by 
Parke,  B.,  in  Morley  v.  Attenborough,  3  Exch.  513.     I  think 


HOPERTV. 

list  shock  the 
te  the  princi- 
possession  of 
that  I  am  the 
more,  caveat 
irn  Jilt  that  I 
transaction,   it 
seems  to  have 
iboroHp;h   was 
unredeemed 
■isions    of  the 
ht  to  sell.     If 
peril.     So,  in 
d  under  a  fi. 
ict  of  the  sale 
:o  buyers  that 
)ods ;  and  the 
ly  contracts  of 
warranty.     In 
\   this  court  in 
the    plaintiff 
he  had  it,  and 
Eorced,  though 
id  of  want  of 
I  contract  there 
d.     These  are 
x  expresses  at 
to  sell  such  a 
it  all  the  trans- 
the  very  act  of 
r  of  the  article 
itrongest  act  of 
irchaser  under 
the  conclusion 
itfirms  that  he 
at  for  which  he 
n   the   doctrine 
ttledale,  J.,   in 
..   6S7,  and  by 
513.     I  think 


KICHHOI.Z    V.    HANNISTEU. 


581 


justice  and  sound  sense  require  us  to  limit  the  doctrine  so  often 
repeated,  that  there  is  no  implied  warranty  of  title  on  the  sale 
of  a  chattel.  I  can  not  but  take  notice  that,  after  all  the 
research  of  two  very  learned  counsel,  the  only  semblance  of 
authority  for  this  doctrine  from  the  time  of  Noy  and  Lord  Coke 
consists  of  mere  tlicta.  These  dicta,  it  is  true,  appear  to  have 
been  adopted  by  several  learned  judges,  among  others  by  my 
excellent  brother  Williams,  whose  words  are  almost  obligatory 
on  me.  IJut  I  can  not  Hnd  a  single  instance  in  which  it  has 
been  more  than  a  repetition  of  barren  sounds,  never  resulting 
in  the  fruit  of  a  judgment.  This  very  much  tends  to  show  the 
wisdom  of  Lord  Campbell's  remark  in  Sims  v.  Marryat,  17  Q. 
U.  291,  that  the  rule  is  beset  with  so  many  exceptions  that  they 
well  nigh  eat  it  up.  It  is  to  be  hoped  that  the  notion  which 
has  so  long  prevailed  will  now  pass  away,  and  that  no  further 
impediment  will  be  placed  in  the  way  of  a  buyer  recovering 
back  money  which  he  has  parted  with  upon  a  consideration 
which  has  failed. 

13yi.es,  J. — I  also  am  of  opinion    that   this   rule    should  be 
discharged.     It  has  been  said  over  and  over  again  that  there  is 
no  implied  warranty  of  title  on  the  mere  sale  of  a  chattel.    But 
it  is  certainly,  as  my  lord  has  observed,  barren  ground  ;  not  a 
single  judgment  has  beert  given  upon  it.     In  every  cause,  there 
has  been,  subject  to  one  single  exception,  either  declaration  or 
conduct.     Chancellor   Kent,    2   Com.   478,    says:     "In  every 
sale  of  a  chattel,  if  the  possession  be  at  the  time  in   another, 
and  there  be  no  covenant  or  warranty  of  title,  the  rule  of  caveat 
emptor  applies,  and  the  party  buys  at  his  peril ;"   for  which  he 
cites  the  dicta  of  Lord   Holt  in  Medina  v.   Stoughton,  i  Salk. 
210,  I  Ld.  Raym.  593,  and  of  Buller,  J.,   in  Pasley  v.  Free- 
man, 3  T.  R.  57,   5S.     "But,"  he  goes  on,  "if  the  seller  has 
possession  of  the  article,  and  he  sells  it  as  his  own,  and  not  as 
agent  for  another,  and  for  a  fair  price,  he  is' understood  to  war- 
rant the  title."     Thus  the  law  stands  that,  if  there  be  declara- 
tion or  conduct  or  warranty  whereby  the  buyer  is  induced  to 
believe  that  the  seller  has  title  to  the  goods  he  professes  to  sell, 
an  action   lies  for  a  breach.     There  can  seldom  be   a  sale  of 
goods  where  one  of  these  circumstances  is  not  present.     I  think 
Lord  Campbell  was  right  when  he  observed  that  the  exceptions 
had  well  nigh  eaten  up  the  rule. 


c^Si     MoPKs  1)1-  oniAiNiNc;  rni.K  to  i-kksdnai.  ntoi'i.u  iy. 

Kk ATiNO,  J.— I  am  of  tlie  same  opinion.     Wiietlier  it  hv  an 
cxciption  to  tlic  rule  or  a  part  of  llie  ^'eneral  rule,  I  think  we 
do  not  controvert  any  decided    case   or  dictum  when  we  i'  .sert 
that,  under  circumstances  like  those   of  the    present   case,    the 
seller  of  floods  warrants  that   he   has  title.     These  <,'oods  were 
bought  in  the  defenilanfs  shop  in  the  ordinary  course  of  busi- 
ness.    He  ^'ives  an  invoice  with  them  which  represents  that  he 
is  selling  them  as  vendor  in  the  ordinary  course.      I  think  the 
case  falls  within  that  put  by    Parke,    H.,   in   Morley  v    Atten- 
borou^di,  3  Exch.  513,  of  a  sale  in  a  shop,  which  he  treats  as  a 
circumstance  whicii  beyond  all  doubt  gives  rise  to  a  warranty 
of  ownership.      1  was  somewhat  pressed  by  Mr.  Ilolker's  (pies- 
tion  whether  there  is  more  atlirmance   of    title  in  the  case  of  a 
sale  in  a  shop  than  in   a  sale  elsewhere.     It  may  be  that  the 
distinction  is  very  tine  in  certain  cases.      If  a  man  professes  to 
sell  without  any  (lualilication  out  of  a  shop,  it  is  not  easy  to  see 
why  that  should  not  have  the  same   operation   us  .t  sale  in  the 
shop.     It  is  not   necessary,   however,   to   decide  that  question 
now.     Here,  the  sale  took  place  in  a  public  shop,  in  the  ordi- 
narv  way  of  business,  and  every  circumstance  concurs  to  bring 
the'case  within  the  distinction  put  by  I'arke,    IJ.,   in  Morlcy  v. 

Attcnborough. 

Rule  discharged. 

CoNsiLT— Jones  v.  Huggeford,  3  Mete.  518;  Bank  v.  Mass.  Loan 
Co.,  123  Mass.  330;  Krunibliaar  v.  ]5irch,  S3  Pa.  St.  42/;  The  Monte 
Allegre,  9  Wheat.  616;  Neal  v.  Gillaspy,  56  Ind.  451,  26  Am.  Rep.  37; 
Cohn  V.  Ammidown,  120  N.  Y.  398. 


§  98.    Same— Nor  where  goods  are  not  in  seller's  posses- 
sion. 

GOULD  V.  BOURGEOIS. 

[51  N.  J.  Law,  361.] 

Supreme  Court  of  Ncxv  Jersey,  i88g. 

Rule  to  show  cause. 

Error  to  circuit  court,  Atlantic  county,   before  Justice  Reed. 
Argued   at    February    term,     1SS9,    before    Beasley,   Chief 
Justice,  and  Justices  Depue,  Van  Syckcl,  and  Knapp. 


M 


Ol'KKTY. 

lier  it  \>v  an 
,  I  think  %vc 
L-n  wf  1'  -scrt 
nt  casi',   tlie 

•jjooils  were 
mrsc  of  biisi- 
sents  tliat  he 

I  think  tlie 
ey  V  Atten- 
ic  treats  as  a 
:o  a  warranty 
olkcr's  ([nes- 
he  case  of  a 

be   tliat  the 

professes  to 
ot  easy  to  see 
t  sale  in  tlic 
that  cjuestion 

in  the  ordi- 
icnrs  to  bring 
in  Morlcy  v. 

e  discharged. 

V.  Mass.  Loan 
27;  Tlie  Monte 
)  Am.  Rep.  37; 


lUer's  posses- 


Goi'i.n  V.  iioruoKois. 


583 


;  Justice  Reed. 
Jeasley,  Chief 
napp. 


]),,,,ip;,  J.— Tliis  suit   was  upon  a  promissory  note   made  by 
the  defenilant.      The  defense  was  tlie  want  or    failure    of   con- 
M.leration.      The  city  council  of  Holly  Beach  City  proposed  to 
In.ild  a  breakwater.     The    defendant    was   an    applicant    for  a 
contract  to  do  the    work,  and    prepared    and    sent    to    the    city 
o.uncil  an  agreement  with  the  city  to  that  effect.      Members  of 
the  city  council   sent  word   to    the  defendant   that  the  city  had 
already  entered  into  a  contract  for   the  building  of  the  break- 
water with  Gould  it  Downs,  that  these  parties  could  not  fullill 
their  contract,  and  that,  if  the  defendant  would  make  a  satis- 
factory arrangement  with  (iould  .\:  Downs,  the  city  would  give 
lum  the  contract.     The  parties  thereupon  entered  into  negotia- 
tion   the  conclusion   of   which  was   a  contract  in   writing  an<l 
under  seal,  whereby  tiould  k  Downs,  for  the  consideration  ol 
a  note  for  $375  and  $^oo  in  city  bonds,  assigned  to  the  defend- 
'uit  "all   onr    right,   title,   and    interest   in    a    certain    contract 
entered   into  bv   the    authorities   of  Holly  Beach  City  and  our- 
selves  to  build'a  certain  breakwater  ordered  built  by  a  resolu- 
tion passed  April   14,  uS>^7-"     Subsequently,  the  city  council, 
iinin-obtaiiedthe  opinion  of   counsel   that  the   city   had  no 
power  to  build  the  breakwater,  refused  to   ratify   the    arrange- 
ment of   the   defendant   with  Gould  &  Downs,  and    abandoned 
the  project  of  constructing  the  work.     The  note  sued   on  was 
oiven  in  compliance  with  the  terms  of  this  assignment.     There 
was  no  proof  of  an  express  warranty  by  Gould  &:  Downs  of  the 
vdidity  of  their  contract,  nor  any  evidence  from  which  fraud, 
either  in  representation  or  concealment  on  their  part,  could  be 
inferred.     The  power  of  the  city  to  make  the  contract  was  not 
mooted  until  after  these  parties  h.id  concluded   their   arrange- 
ment anrl  the  assignment  had  been  made  ;   and,  if  the  contract 
was  invalid,  its  invalidity  arose  from  the  city  charter,— a  public 
■,ct  ecpially  within  the  knowledge  of  bo^h  parties.    The  dcfend- 
■mfs  contention  was  that,  inasmuch  as  there  was  a  sale  of  the 
contract,  a  warranty  that  the  contract  was  a  valid  contract  was 
implied,  and  that,  the  contract  being  ultra  vires  on  the  part  of 
the   city,   and   void,  the  consideration   entirely   failed.     If  the 
proposition  on  which  the  defense  was  rested  be   sound    in  law, 
the   defense  was  appropriate    in    this   suit.     The    doctrine    of 
implied  warranty  of  title  in  the  sale  of  goods  applies  as  well  to 
the  sale  of  a  chose  in  action,  and  extends  not    merely   to   the 


% 


5'^4 


MODI'S  OK   OIllAlNlNli   TITI.K  TO  I'KllSONAl.  I'UOI'KUIY. 


paper  oil  which  the  cliosc  in  action  is  written,  1)ut  cniliraccs 
also  till-  validity  of  the  ri^^lit  piirportcil  to  he  transferred. 
Wo.ul  V.  Shchlon,  4J  N.  J.  Uaw,  421.  Nor  is  there  nnythinn 
in  the  nature  of  the  ollcRed  inHrmity  of  the  contract  that  would 
bar  the  defense.  In  the  ordinary  case  of  a  suit  on  a  hreach  ot 
warranty  of  title  the  validity  of  the  vendor's  title  a^jainst  the 
adverse  claimant  is  Iriahle.  if  the  purchaser  has  in  fact  lost 
title,  although  the  transactions  which  determine  the  vendor's 
title  arc  res  inter  alios  acta.  If  the  contract  which  was  the 
suhject-maltir  of  the  assinjinncnt  was  in  fact  ultra  vires,  a 
foundation  was  laid  for  this  defense,  the  city  havin},Mcpudiated 
the  contract  in  limine  on  t!iat  ground. 

The  validity  of  the  defense  offered  and  overruled  depends 
upon  the  fundamental  proposition  whether,  under  the  circum- 
stances of  this  sale,  a  warranty  of  title  is  ir  .)lied  in  law.  The 
theory  on  which  a  warranty  of  title  is  implied  upon  the  sale  of 
personal  property  is  that  the  act  of  sellinj,'  is  an  allirmation  of 
title.  The  earlier  English  cases,  of  which  Medina  v.  Stough- 
ton,  I  Salk.  210,  i  Ld.  Raym.  593,  is  a  type,  adopted  a  dis- 
tinction between  a  sale  by  a  vendor  who  was  in  possession  and 
a  sale  where  the  chattel  was  in  the  possession  of  a  third  person; 
annexing  a  warranty  of  title  to  the  former,  and  excluding  it  in 
the  latter.  In  the  celebrated  case  of  Pasley  v.  Freeman,  3 
Term  R.  51,  Buller,  J.,  repudiated  this  distinction.  Speaking 
of  Medina  v.  Stoughton,  this  learned  judge  said  that  the  dis- 
tinction did  not  appear  in  the  report  of  the  case  by  Lord  Ray- 
mond, and  he  adds:  "If  an  afhrmation  at  the  time  of  the  sale 
be  a  warranty,  I  can  not  feel  a  distinction  between  the  vendor's 
being  in  or  out  of  possession.  The  thing  is  boiight  of  him, 
and  in  consequence  of  h=^  assertion;  and,  if  there  be  any  dif- 
ference, it  seems  to  me  that  the  case  is  strongest  against  the 
vendor  when  he  is  out  of  possession,  because  then  the  vendee 
has  nothing  but  the  warranty  to  rely  on."  Nevertheless  the 
English  courts  continue  to  recogni/.^  the  distinction,  with  its 
incidents,  as  adopted  in  Medina  v.  .^'ti  ighton,  to  some  extent, 
at  least  so  far  as  to  annex  the  incident  of  an  implied  warranty 
of  title  on  a  sale  by  a  vendor  in  pr  ssession.  Later  decisions 
have  placed  the  whole  subject  of  implied  warranty  of  title  on  a 
more  reasonable  basis.  Mr.  Benjamin,  in  his  treatise  on 
Sales,    after   a   full    examination    and    discussion   of   the   late 


iOPBIlTY. 


nit  onilinu'os 
tiaiisferri'd. 
ere  niiytliiiij^ 
:t  that  would 
II  a  hreach  ot 
I  ajjaiiist  the 
\\\  fact  lost 
the  vendor's 
hicli  was  tlie 
Itra  vires,  a 
i}j  repudiated 

ulcd  depends 
r  the  circum- 
in  law.  The 
Dn  the  sale  of 
atlirmation  of 
iia  V.  Stough- 
ioptcd  a  dis- 
ossession  and 
third  jierson ; 
xcluding  it  in 
,  Freeman,  3 
n.  Speaking 
that  the  dis- 
by  Lord  Kay- 
le  of  the  sale 
1  the  vendor's 
ought  of  him, 
re  be  any  dif- 
it  against  the 
n  the  vendee 
vertheless  the 
:tion,  with  its 
)  some  extent, 
lied  warranty 
ater  decisions 
y  of  title  on  a 
5  treatise  on 
1   of   the   late 


i 


Goui.n  V.  nouiioKois. 


3^.=; 


English  cases,  states  the  rule  in  force   in  England   at  this   time 
in  the  following   terms:   "A  sale  of  personal  chattels  implies 
;in  aOirmation  by  the  vendor  tliat  the  chattel  is  his,  and,  there- 
lure,  he  warrants  the   title,  unless  it  be  shown  by  the   facts  and 
circumstances    of    the  sale    that    the  vendor    did   not   intend   to 
Msscrt  ownership,  but  only  to  transfer  such  interest  as  be  might 
liave  in  the  chattel  sold."      2  Benj.  Sales  [Corbin's  i:d.],  sees. 
^,.\i^-i)Cn.     In  this  country  the  distinction  between   sales    whera 
tlie  vendor  is  in  possession  and  where  he  is    mit    of  possession, 
with  respect  to  implied    warranty  of  title,   has   been    generally 
recognized  ;    but  the  tendency  of  later  decisions   is   against  the 
recognition  of  such  a  distinction,  and  favorable  to  the  modern 
l.nglish  rule.     Id.,  section  962,  note  21.      Hid.  War.,  sections 
.■16,  247.     The  American  editor  of  the  ninth  edition  of  Smith's 
Leading  Cases,  in  the  note  to  Chandelor  v.  Lopus,  after  citing 
the  cases  in  this  country  which  have  held  that  the  rule  of  caveat 
emptor  applies  to  sales  where  the  vendor  is  out  of  possession, 
remarks  that  in  most  of  them  what  was  said  on  that  point  was 
obiter  dicta,  and  observes  "that  there  seems  no  reason  why,  in 
everv  case  where  the  vendor  purports  to  sell   an  absolute  and 
perfect  title,  he  should  not  be  held   to   warrant   it."      i  Smith, 
Lead.  Cas.  [Ldson's  Ed.]  344.     In  Wood  v.  Sheldon,  supra, 
Chief  Justice  Beasley,  in  delivering  the  opinion   of  the  court, 
adopted,  in  terms,  the  rule  stated  by  Mr.  Benjamin,  and  made 
it  the  foundation  of  decision.     The  precise  question  now  under 
discussion  did  not  then   arise.     In   Eichholz  v.  Bannister,  17 
C.  B.  (N.  S.)  70S-731,  Erie,  C.  J.,  said:   "I  consider  it  to  be 
clear  ui>on  the  ancient  authorities  that,  if  the  vendor  of  a  chattel 
by  word  or  conduct  gives  the  purchaser  to  understand  that  he 
is  the  owner,  that  tacit  representation  forms  part  of  the  con- 
tract;  and  that  if  he  is  not  the  owner  his  contract   is  broken. 
*     *     •     In  almost  all  the  transactions  of  sale  in  common  life, 
the   seller,  by  the  very  act  of  celling,  holds  out  to   the  buyer 
that  he  is  the  owner  of  the  article  he  offers  for  sale."     In  that 
case  it  was  held  that  on  the  sale  of  goods  in   an  open  shop  or 
warehouse,  in  the  ordinary  course   of  business,  a  warranty  of 
title  was  implied;  but  there  is  a  line  of  English  cases   holding 
that,  where  the  facts  and  circumstances  show  that  the  purpose 
of  the  sale,  as  it  must  have  been  understood  by  the  parties  at 
the  time,  was  not  to  con-  ey  an  absolute  and  indefeasible  title, 


I 


5S6       MOI.i:s  OF  OnrAlNING   TITLE  TO   I'KKSONAL  PROl'ERTV. 

but  only  to  transfer  the  title  or  interest  of  the  vendor,  no  v.ar- 
rantv  of  title  will  be  implied.     In  this  proposition  the  fact  that 
the  vendor  is  in  or  out  of  possession  is  only  a  circumstance   of 
more  or  less  weicrht,  according  to  the  nature  and  circun -stances 
of  the   particular  transaction.     Thus    in  Morley  v.  Attenbor- 
ough,  3  Exch.  500,  the  holding  was  that  on  a  calc  by  a  pawn- 
broker at  public  auction  of  goods  pledged  to  him  in  the  way  of 
business  there  w:.s   no  implied  warranty  of   absolute  title,  the 
undertaking  of  the  vendor  being  only  that   the   subject   of   the 
sale    was    a  pledge,    and    irredeemable    by    the    pledgor.      In 
Chapman   v.    Speller,    14    Q-   «•  6zi,  the  defendant   bought 
goods   at   a  sheriff's   sale   for  ^iS.     The    plaintiff,  who    was 
present    at    the    sheriff's    sale,    bought    of     the    defendant    h.s 
bir^ain  for  ^33.     The   plaintiff  was  afterward  forced  to  give 
up  the  -oods  to  the  real  owner.     He  then   sued   the  defendant, 
allecin.^  a  warranty  of  title.     The  court  held  that  there  was  no 
implied  warranty  of  title  nor  failure  of  consideration;  that  the 
plaintiff  paid   the  defendant,    not    for  the   goods,  but  for  the 
ri-ht     title,   and  interest  the  latter   had    acquired  by  h.s   pur- 
chase, and  that  this  consideration  had  not  failed.     In  Bagueley 
V     Hawlev,  L.  R.   2  C.  P.  625,   a  like    decision  was    made, 
vvhere  the"  defendant  resold  to  the  plaintiff  a  boiler  the  former 
h-id  boucrht  at  a  sale  under  a  distress  for  poor  rates,  the  plain- 
tiff bavin-  knowledge   at  the   time  of    his    purchase   that    the 
defend.'nt  had  bought   it  at   such  sale.     In  Hall  v.  Conder    3 
C    B    (X.  S.)  22,  the  plaintiff,  by  an  agreement  in  writing  by 
which,  after  reciting  that  he  had  invented  a  method  of  prevent- 
in-   boiler   explosions,    and    had    obtained    a   patent   therefor 
widiiii  the  United  Kingdom,  transferred  to  the  defendant  "the 
one  half  of  the  English  patent"  for  a  consideration  to  be  paid. 
In  a  suit  to   recover  the  consideration  the  defendant   pleaded 
that  the  invention   was    wholly   worthless,    and    of   no    public 
utility  or  advantage  whatever,  and  that  the   plaintiff  was  not 
the  true  and    first    inventor    thereof.     On    demurrer    the  plea 
was  held  bad,  for  that,  in   the   absence   of  any  allegation  ot 
fraud,  it  must  be  assumed  that  the  plaintiff  was   an  inventor, 
and  there  was  no  warranty,  express  or  implied,  either  that  he 
was  the  true  and  first  inventor  within  the  statute  of  James,  or 
that  the  invention  was  useful  or  new;  but  that  the  contract 
was  for  the  sale  of  the  patent,  such  as  it  was,  each  party  hav- 


SONAL  I'KOl'KRTY. 

:  the  vendor,  no  v/ar- 
oposition  the  fact  that 
iiily  a  chcumstance  of 
lire  and  circunistanccs 

Morley  v.  Attenboi- 
t  f)n  a  sale  by  a  pawn- 
d  to  him  in  the  way  of 

of  absolute  title,  the 
lat   the   subject   of   the 

by  the  pledj^or.  In 
the  defendant  bought 
he  plaintiff,  who  was 
of  the  defendant  his 
teiward  forced  to  give 
n    sued   the  defendant, 

held  that  there  was  no 
consideration;  that  the 
;he   goods,  but  for  the 

acquired  by  his  pur- 
Dt  failed.  In  Bagueley 
e  decision  was  made, 
itiff  a  boiler  the  former 
)r  poor  rates,  the  plain- 

his  purchase  that  the 
In  Hall  V.  Conder,  3 
igreement  in  writing  by 
ed  a  method  of  prevent- 
incd  a  patent  therefor 
1  to  the  defendant  "the 
onsideration  to  be  paid. 

the  defendant  pleaded 
less,  and  of  no  public 
it   the   plaintiff  was  not 

On  demurrer  the  plea 
ce  of  any  allegation  of 
aintiff  was  an  inventor, 
-  implied,  either  that  he 
the  statute  of  James,  or 
I ;  but   that  the  contract 

it  was,  each  party  hav- 


GOULD    V.  nOURGEOIS. 


5S7 


; 


ing  equal  means  of  ascertaining  its  value,  and  each  acting  on 
hi^own  judgment.  A  like  decision  was  made  in  Smith  v. 
Neale,  3  C.  B.  (N.  S.)  67. 

Chief  Justice  Erie,   in  his  opinion   in  Eichholz  v.  Bannister, 
describes  Morley  v.  Attenborough,  Chapman  v.  Speller,  and 
Hall  v.  Conder,  as  belonging  to  the  class  of  cases    where  the 
conduct  of  the  seller  expresses,  at  the  time  of   the   contract, 
ihat  he  merely  contracts   to  sell  such  title  as  he  himself  has  in 
the  thing.     Tiie  opinion  is  valuable,  in   that,  while    it   rescues 
the  common  law  rule  of   implied   warranty  of   title    from  the 
assaults  of  distinguished  judges   who   held    that  caveat  emptor 
applied  to  sales  in  all  cases,  and  that  in  the  absence  of  express 
warranty  or  fraud  the  purchaser   was  remediless,  it  also  placed 
tlie  rule  under  the  just  limitation  that  it  should  not  apply  where 
the  circumstances  showed  that  the  sale  purported   to  be   only  a 
transfer  of  the  vendor's  title.     Expressions   such  as  "if  a  man 
sells  goods  as  his  own,  and  the  titic  is  deficient,  he  is  liable  to 
make  good  the  loss"  (3  Bl.  Comm.  451),  or  "if  he  sells  as  his 
own,  and  not  as  the  agent  of   another,  and  for  a  fair  price,  he 
is  understood    to  warrant  the  title' ^  (3  Kent,  Comm.  478)— as 
a  statement  of  the  principle  on   which  the   doctrine    of  implied 
warranty   of  title  rests,  are  not  inconsistent  with  the  principle 
adopted  by  Chief  Justice  Erie.     Stating   the   principle    in  the 
negative  form  adopted  in  Morley  v.  Attenborough,  that  there 
is  no  undertaking  by  the   vendor  for  title   unless   there  be    an 
express  warranty  of  title,  or  an  equivalent  to  it  by  declaration 
or  conduct,  affects  only  the  order  of  proof.     It  was  conceded 
in  that  case  that   the   pawnbroker  selling  his  goods  undertook 
that   they  had    been   pledged,   and    were    irredeemable  by  the 
pledgor,  and  if  it  be  assumed,   as  I  think   it  must  be,  that  the 
act  of  selling  amounts  to  an  affirmation  of  title  of   some  sort, 
but  that  its  force    and   effect    may   be   explained,  qualified,  or 
entirely   overcome  by  the   facts    and  circumstances    connected 
with  tiie  transaction,  the  difference  between  Morley  v.  Atten- 
liorough    and    Eichholz   v.    Bannister   will    rarely   be   of    any 
practical  importance. 

The  limitation  above  mentioned  upon  the  doctrine  that  the 
a;t  of  selling  is  an  affirmation  of  title  has  been  adopted  in  this 
slate.  In  Bogert  v.  Chrystie,  24  N.  J.  Law,  57-60,  this  court 
held  that  the  general  rule  that  the  vendor  of  goods  having  pos- 


5SS       MOUKS  OF  OBTAINING  TITLE  TO  PERSONAL  I'KOPEUTY. 


session,  and  sellin<T  them  as  his  own,  is  bound  in  law  to  war- 
rant tiie  title  to  the  vendee,  did  not  apply  where  the  vendor 
sells  with  notice  of  an  outstanding  interest  in  a  third  party, 
and  subject  to  that  interest.  In  Hoagland  v.  Hall,  3?  N.  J. 
L:i\v,  351,  the  vendor  agreed  in  writing  to  assign  a  lease  he 
held  upon  certain  premises,  and  to  sell  and  transfer  goods  and 
chattels  mentioned  in  a  schedule.  The  premises  were  a 
licensed  inn  and  tavern,  and  in  the  schedule  of  the  articles  sold 
were  enumerated  "the  licenses  of  the  house."  The  law  under 
which  the  licejise  was  granted  prohibited  the  transfer  of  a 
license,  and  in  the  purchaser's  hands  it  would  be  void  and 
valueless.  The  court  held  that  that  circumstance  did  not 
justify  the  purchaser  in  withdrawing  from  his  contract;  that 
there  was  no  warranty  by  the  vendor  that  the  license,  when 
assigned,  would  be  of  any  value  to  the  purchaser;  and  that  the 
latter,  having  obtained  by  the  assignment  what  he  had  bar- 
gained for,  could  not  annul  his  contract  unless  he  showed  fraud 
or  misrepiescntation  with  respect  to  the  subject-matter  of  the 
contract.  In  IJank  v.  Trust  Co.,  123  Mass.  330,  the  defend- 
ant had  a  contract  with  B.,  pledging  to  him  certain  tobacco,  in 
which  it  was  recited  that  the  tobacco  was  B.'s  own  property, 
and  free  from  all  incumbrances,  and  made  an  assignment  to 
the  plaintiff  "of  all  his  right,  title,  and  interest  in  and  under 
the  contract,  with  all  the  property  therein  mentioned."  The 
tobacco  was  then  in  the  defendant's  possession,  and  was  de- 
livered by  him  to  the  plaintiff.  Afterward  a  third  person 
demanded  and  recovered  of  the  plaintiff  part  of  the  tobacco  as 
his  property,  which  had  been  pledged  to  the  defendant  without 
right.  The  plaintiff  then  sued  the  defendant  on  an  alleged 
implied  warranty  of  title.  The  court  ruled  adversely  to  the 
plaintiff's  claim.  In  the  opinion  the  court  said  that  the  written 
assignment  did  not  purport  to  be  a  sale  of  the  goods,  but  of  all 
the  defendant's  right  under  the  contract,  and  its  obvious  pur- 
pose was  to  substitute  the  plaintiff  in  the  place  of  the  original 
pledgee,  and  that  the  fact  that  at  the  time  of  the  transfer  to  the 
plaintiff  the  goods  were  in  the  actual  possession  of  the  defend- 
ant did  not  vary  the  case. 

In  the  case  in  hand  the  circumstances  connected  with  the 
assignment,  independent  of  the  words  "all  our  right,  title,  and 
interest,"  etc.,  contained  in  it,  preclude  the  implication  of  a 


KOPEUTY. 


OSGOOD    V.   LEWIS. 


:S9 


in  law  to  war- 
re  the  vemlor 
a  third  party, 
Hall,  3?N.  J. 
jign  a  lease  he 
sfcr  goods  and 
mises  were  a 
le  articles  sold 
rhe  law  under 
transfer  of  a 
be  void  and 
ance  did  not 
contract ;  that 
license,  when 
;  and  that  the 
t  he  had  bar- 
showed  fraud 
-matter  of  the 
3,  the  defend- 
lin  tobacco,  in 
3wn  property, 
assignment  to 
in  and  under 
ioned."  The 
1,  and  was  de- 
third  person 
the  tobacco  as 
ndant  without 
on  an  alleged 
versely  to  the 
lat  the  written 
ads,  but  of  all 
obvious  pur- 
)f  the  original 
transfer  to  the 
of  the  defend- 

cted  with  the 
ight,  title,  and 
plication  of  a 


warranty  of  the  validity  of  the  contract.  Taken  in  connection 
with  the  words  of  the  assignment,  the  intention  of  the  parties 
is  free  from  doubt. 

The  contention  that  the  plaintiff  was  in  fault  in  that  he  made 
no  delivery  of  the  contract  to  the  defendant  is  without  sub- 
stance. The  contract  was  neither  produced  at  the  negotiation 
between  the  parties,  nor  was  it  required.  The  transaction  was 
the  purchase  of  Gould  &  Downs'  interest  to  consummate  an 
arrangement  whereby  those  parties  were  to  be  got  rid  of,  that 
tiie  city  might  give  the  defendant  a  contract.  The  defendant 
(ihtained  by  the  assignment  all  he  bargained  for.  The  defense 
was  properly  overruled,  and  the  rule  to  show  cause  should  be 
discharged. 

Consult— Scranton  v.  Clark,  39  N.  Y.  220,  100  Am.  Dec.  430;  Hunt- 
ington V.  IIjill,  36  Me.'soi,  58  Am.  Dec.  765;  Scott  v.  Hix,  2  Sneed,  172, 
6:"Am.  Dec.  460;  Bogart  v.  Christie,  24  N.  J.  (L.)  60;  Porter  v. 
Bright,  82  Pa.  St.  441. 


§  99.    Warranty  of  quality— Express  warranty. 

OSGOOD  V.  LEWIS. 

[2  H.  &  S.  495;  18  Am.  Dec.  317.] 

Court  of  Appeals  of  Maryland,  182Q. 

The  plaintiffs  purchased  from  the  defendant  a  certain  quan- 
tity of  sperm  oil,  and  received  from  him,  at  the  time  the  oil  was 
delivered,  a  bill  of  parcels  containing  a  statement  that  plaintiffs 
had  purchased  of  him  one  hundred  and  fifteen  casks  of  "winter- 
piL-sed  sperm  oil."  The  oil  turned  out  to  be  of  a  very  infe- 
rior quality.  Verdict  and  judgment  for  defendant.  Appeal 
from  the  Baltimore  county  court. 

DoRSEV,  J.— Three  questions  have  been  argued  in  this 
cause.  The  first  (presented  by  the  first,  second,  and  third 
exceptions)  is,  whether  the  statement  in  the  bill  of  parcels  that 
t  lie  oil  therein  mentioned  was  winter-pressed,  be  a  warranty  of  that 
tact.  The  second  (arising  on  the  fourth  exception)  is,  whether 
upon  the  whole  proof  permitted  to  go  to  the  jury,  the  county  court 


590      MODF.S  Ol-  OnTAININC.   TITI.K  TO  PERSONAL  PROPERTY. 

erred  in  instructing  them  that  there  was  no  evidence  that  the 
oil  was  warranted  winter-pressed.  The  third  question  (involved 
both  in  the  third  and  fourth  exceptions)  is:  Can  the  appellants, 
havin-  sued  in  case,  and  charged  fraud  and  deceit,  recover  with- 
out proof  of  a  scienter? 

It  was  not  denied  in  the  argument  that  after  verdict  the  alle- 
gation  of  fraud  and  deceit  in  the  declaration  is  equivalent  to  | 
the  char.re  of  an  actual  scienter;  and  it  was  admitted  that  if  m 
this  case^here  be  an  express  warranty  that  the  oil  was  winter- 
pressed,  then  the  averment  of  fraud  and  deceit  is  immaterial 
and  need  not  be  proved. 

Warranties  on  the  sales  of  personal   property  have   usually 
been  .Hvided  into  two  classes,  express  and  implied.     To  create 
an  express  warranty  the  word  "warrant"  need  not  be  used  nor 
i.  anv  precise  form  of   expression   reciuired.      Any   albrmation 
of  the  qualitv  or  condition   of   the   thing   sold  (not    uttered   as 
matter  of  opinion  or  belief)  made  by  the  seller   at  the   time  ot 
s-ile  for  the  purpose  of  assuring  the  buyer  of   the   truth  of  the 
fact  aflhrned  and  inducing  him  t<.    m.ike   the  purchase,  ,f  so 
received  and  relied  on  by  the  purchaser,  is  an  express  warranty. 
And  in  cases  of  oral  contracts,  on  the  existence  of  these  neces- 
sary  in-redients  to  such  a  warranty,  it  is  the   province  of  the 
iurv  to  decide,  upon  considering  all  the  circumstances  attending 
the  transaction.     But  of  written  contracts  the  court  are  the  ex- 
positors     Whether  the  instrument  contain  an  express  warranty 
or  not  they  must  determine;  not  leaving  the  question  to    be 
inferred  by  a  jury  from  a  consideration  of  facts  aliunde. 

Implied  warranties  arise  by  implied  operation  of  law;   they 
exist  without  anv   intention  of    the  seller   to  create  them,  and 
mayproperlv  be   divided   into    two   kinds.     The  one  untinct- 
ured  by  actual  fraud  or  deceit,  as   the  warranty  of   title,  war- 
ranty that  provisions  purchased  for  domestic  use  are  whole- 
some ;  and  the  warranty   in  executory  contracts,  or  where  the 
purchaser  had   no  opportunity   of   inspection,   that  the   article 
contracted  for  shall   be  salable   as  such   in  the  market.     The 
other  kind  of  implied  warranties  are  those  where  fraud  and  de- 
ceit are  of  their  very  essence,  without  which  they  do  not  exist. 
as  in  cases  where  the  seller  of  any  article,   knowing  of  its  un- 
soundness, uses  any  disguise  or  artifice  to  conceal  it,  «r  /epro- 
sents  it  (whether  in  the  way  of  expressing  opinion  or  belief,  o  r 


.itl- 
;irt 
the 
coi 
f:u 
th: 
w; 
til. 
W 
all 
ar 
\v! 
cc 
w 

Pi 
1m 

til 

01 

w 


,   I'KOPEIITY. 

/idence    that  the      ^^ 
jestion  (involvcil 
II  the  appellants, 
eit,  recover  with- 

■  vc'dict  the  alle- 
is  equivalent  to 
Imitted  that  if  in 
I  oil  was  winter- 
jit   is  immaterial 

rty  have   usually     J 
ilicd.      To  create 
I  not  be   used  nor 

Any  affirmation 
1  (not  uttered  as 
T  at  the   time  ot 

the  truth  of  the 
c  purchase,  if  so 
express  warranty, 
ce  of  these  neces- 
e  province  of  the 
nstances  attendin;j; 

court  are  the  ex- 
1  express  warranty 
le  question  to  be 
;ts  aliunde. 
ition  of  law;  they 
1  create  them,  and 

The  one  untinct- 
nty  of  title,  war- 
ic  use  are  whole - 
acts,  or  where  the 
n,   that  the   article 

the  market.  The 
/here  fraud  and  do- 

they  do  not  exist. 
knowing  of  its  un- 
onceal  it,  or  repro- 
pinion  or  belief,  <>  r 


OSGOOD    V.    I.ICWIS. 


59' 


.otherwise)  to  be  exempt  from  such  defect.    Implied  warranties 
:,rc  not  conclusions  or  inferences  of  fact  drawn  by  a  jury  :  but 
lliey  arc  the  conclusions  or  inferences  of  law  pronounced  by  the 
court  upon  facts  admitted  or  proved  before    the  jury.      If  Uie 
facts  be  controverted,  the  court  hypothetically  instruct  the  jury 
tliat  if  they  find  such  and  such  facts,  then  there  is  an  implied 
warranty,  and  their  verdict  must  be  given  accordingly ;   but  if 
tlay  do  not  find  those  facts  then  there  is  no  implied  warranty. 
Where  an  inquiry,  therefore,  is  submitted  to  a  jury,  whether  an 
allirmation  or  statement  made  by  the  seller  of  the  quality  of  an 
article  sold  be  a  warranty  or   not,  the  question    would  be,   not 
uliether  it  be  an  implied  but  an  express  warranty?     Had  the 
court  below  permitted  this  case  to  go  to  the  jury  to  determine 
whether,  upon  the  whole  testimony  offered,  the  oil  was  winter- 
pressed  oil,  the  question  of  express  warranty  only  could  have 
l^ccn  the  subject  of  their  inquiry.      The  attempt,  therefore,  by 
tlic  appellee's  counsel  to  sustain  the  opinion  of  the  county  court 
on  the  ground  that  the  present  action  depends  on  an  implied 
warranty,  if  these  positions  be  correct,  can  not  avail  them. 

In  support  of  the  doctrine  likewise  insisted  on,  that  conceding 
tills  to  be  an  implied  warranty  on  which  an  action  on  the  case 
could  be  sustained,  without    any  allegation    of  fraud,  yet  that 
fraud  being  charged,  must  be  proved  ;  no  case  of  acknowledged 
authority  has  been  produced.      The  passages  relied  on  to  estab- 
lish it  in  Selwyn'sNisi  Prius,  PP.4S2,  4S3,  tit.  Deceit,  are  mere 
statements  of  the  principles  decided  in  Dale's  Case,  Cro.   Eliz. 
41 ;  Springwell  v.  Allen,  Alleyn,  91  ;  and  Chandelorv.  Lopus, 
Cro.  Jac.  4.     The  only  point  adjudged    in  the    two  former  of 
these  cases  is  that  he  who  sells  a  chattel  without  title  is  not  an- 
swerable to  the  purchaser  (from  whom  the  property  is  recov- 
ered by  the  rightful  owner)  unless  he    made  an   express  war- 
ranty, or  knew  of  the  defect  of  his  title.     And  the  only  point 
settled  by  the  last  case  except  that,  in  pleading,  affirmation  of 
a  fact  does  not  mean  a  warranty  thereof,  is,  that  if  the  seller  of 
a  horse,  knowing  him  to  be  unsound,  affirms  to  the  buyer  that 
lie  is  sound ;  or,  if  the  owner  of  a  stone  of  no  real  value,  know- 
ing it  to  be  such,  sell  it  to  a  person  unskilled  in   such   articles, 
as  a  diamond  of  great  value,  and  atfirm  it  so  to  be,  no  action 
lies  against  him  by  the  purchaser  whom  he  has  defrauded;  and 
that  it  is  the  same  thing  whether  he  knew  his  affirmations  to  be 


592       MOnKS  OF  OBTAINING  TITLE  TO  PERSONAL  PROPEKTV. 

false,  or  believed  them  to  be  true.     It  is  unnecessary  to  say  that 
these  decisions  are  at  war  with  the  settled  axioms  of  the  law  as 
recognized  in  all  modern  cases  and  writers  on  the  subject.     In 
an  action  on  the   case,   upon  an  express  warranty,   fraud  and 
deceit,  though  alleged,  need  not  be  proved,  because  the  alle- 
gation is  immaterial,  the  action  being  sustainable  without  it.  The 
same  reason  will  produce  the  same  consequence  in  all  actions 
on  the  case  on  implied  warranties,  where  the  scienter  is  not  an 
essential  ingredient  of  the  right  of   action.     This  view  of  the 
subject  accords  with  that  found  in  Long  on  Sales,  120,  where, 
in  treating  of  warranties,   in  sales  of   personal   property,   it  is 
stated,  "some  warranties  are  implied  by  law  without  any  par- 
ticular stipulation  between  the  parties.     Thus  the  seller  is  un- 
derstood to  undertake  that  the  commodity  he  sells  is  his  own; 
and  if  it  prove  otherwise,  an  action  on  the  case  in  the  nature  of 
deceit  l!*.'^         mst  him   to  exact  damages  for  this  deceit.      In 
contra  t-    .        ^>'Oivisions   it    is    always    implied    that   tiiey  are 
wholc^c   1. ,  -a.i  if  they  be  not,  the  same  remedy  may  be  had." 
Yet  in  either  of  those  cases  the  seller  is  liable   though  ignorant 
ofthedoicct.     But  if  sued,  as  directed   in  "nature   of  deceit" 
where  tht;  sCiC.  .er.  i..  u-.-iud  and  deceit,  are  always  alleged,   no 
recovery  can  be  had  according  to  the  doctrine   contended  for, 
without  proof  of  actual  fraud.     In  such   cases   the   fraud   and 
deceit  are  intendments  of  law,  not  matters  of  fact   necessary  to 
be  proved.     As  was  justly  observed  by  Chief  Justice  Ander- 
son, who  dissented  from  the  other  judges  in  Dale's  Case:      "It 
shall  be  intended  that  he  that  sold  had  knowledge  whether  they 
were  his  goods  or  not."     It  hence  follows  that  the   opinion  of 
the  county  court  can  not  be  supported  on  the  principle  urged  in 
the  argument  of  the  third  question. 

Whether  the  statement  in  the  bill  of  parcels  that  the  oil  was 
"winter-pressed"  be  per  sc  a  warranty  of  that  fact  is  a  question 
of  more  ditficulty.  In  oral  contracts  much  of  the  colloquium 
was  never  intended  or  understood  by  the  parties  to  be  essential 
component  parts  of  the  contract.  But  in  written  agreements 
nothing  is  inserted  which  is  immaterial ;  no  fact  stated  which  is 
not  presumed  to  be  relied  on  by  the  parties,  and  for  the  truth 
of  which  the  one  does  not  bind  himself  to  the  other.  Upon 
this  principle  it  is  that  mere  recitals  in  deeds  h.nve  been  held  to 
be  covenants;   upon  this  ground  must  rest  the  decision  that  the 


t! 


• 


tm 


ROPEKTY. 


OSGOOD   V.  1. i:\vis. 


593 


ary  to  say  that 
of  the  law  as 
!  subject.      In 
ty,   frau-.l  and 
;iuse  the  alle- 
nthoutit.  The 
in  all  actions 
nter  is  not  an 
s  view  of  the 
s,  1 20,  where, 
property,   it  is 
hout  any  par- 
e  seller  is  mi- 
ls is  his  own; 
I  the  nature  of 
lis  deceit.      In 
that   they  are 
may  be  had." 
lOugh  ignorant 
ire   of  deceit" 
lys  alleged,  no 
contended  for, 
the   fraud   and 
t   necessary  to 
Justice  Ander- 
e'sCase:      "It 
;e  whether  they 
the   opinion  of 
inciple  urged  in 

hat  the  oil  was 
ict  is  a  question 
the  colloquium 
i  to  be  essential 
ten  agreements 
:  stated  which  is 
nd  for  the  truth 
;  other.  Upon 
ive  been  held  to 
ecision  that  the 


action  of  covenant  could  be  supported  in  Craemcr  v.  Bradshavv, 
10  Johns.  4S4.  There  the  plaintiff  declared  on  a  bill  of  sale 
1,v  which  the  defendant,  in  consideration  of  one  hundred  and 
seventy-five  dollars,  bargained  and  sold  to  the  plaintiff  "a 
negro  woman  slave,  named  Sarah,  aged  about  thirty  years, 
l.chig  of  sound  mind  and  limb,  free  from  all  disease."  And 
llic  defendant,  in  due  form,  in  the  covenanting  part  of  the 
instrument  (omitting  everything  as  to  age  or  soundness),  cove- 
nanted only  to  warrant  and  defend  the  slave  so  sold  to  the 
]ilaintiff  against  the  defendant  and  all  other  persons.  Tlie 
alleged  breach  was  that  the  slave  was  unsound  and  affected 
with  divers  diseases,  etc.  Per  curiam,  the  words  in  the  bill  of 
sale  '-being  of  sound  mind  and  limb,  and  free  from  all  dis- 
eases," are  an  averment  of  a  fact  and  import  an  agreement  to 
that  effect.  The  words  were  not  used  as  a  mere  description  of 
the  slave;  they  amount  to  an  express,  not  an  implied  warranty ; 
to  a  warranty  of  the  soundness  of  the  slave.  The  plaintiff  is, 
therefore,  entitled  to  judgment. 

If  the  bill  of  parcels  be  considered  as  the  written  contract 
between   the   parties,    the   statement  therein   that  the   oil    was 
••winter-pressed"   could  not   be  considered  as  mere  matter  of 
description,   or  of  opinion  or  belief  of  the  seller;  but  as  the 
averment  of  a  material  fact  of  which  he  has  taken  to   himself 
the  knowledge,  and  the  existence  of  which  he  warrants.     This 
court,  however,  has  never  decided  that  the  bill  of  parcels  is  the 
written  contract,  nor  is  it  designed  at  this  time  to  express  any 
opinion  upon  that  subject;  but  in  Balturs  v.  Sellers  and  Pat- 
terson, 5  Harr.   &  John.    117,  9  Am.  Dec.  492,   and  6  Harr. 
^S;  John.   249,  this  court  did   decide  that  the  bill  of  parcels   in 
that  case  was  written  evidence  of  the  contract,  and  could  not 
be  added  to  or  varied  by  oral  testimony.     It  follows  as  a  neces- 
sary consequence  that  if  the  bill  of  parcels  be  "the  written  evi- 
dence of  the  contract"  the  terms  and  expressions  thereof  must 
receive   the    same    construction   that   would  be  given  them   if 
expounded   from  the   written  agreement  itself,   where    calling 
It  ••winter-pressed  oil"  would  be  a  warranty  that  it  was  such. 
Upon  English  authorities  independently   of  any  decisions  in 
this  state,  it  would  appear  that  a  statement  in  a  bill  of  parcel* 
01  any  similar  instrument,  of  the  quality  of  an  article  sold,  is  a 

38 


mmm 


59+ 


MODES  OI-   OniAIMNO  HTLK   TO  I'KUSONAI.   IMIOI'K IITY. 


warranty  thereof.     In  Yates  v.  Pyne,  6  Taunt.  446,   an  action 
upon  a  sale  note  (an  instrument  (if  no  <,'reater  soleninity  or  ob- 
ligation than  a  bill  of   parcels)    "of   tifty-eij,^ht  bales  of  prime 
sinf,-ecl  bacon"    on  account  of   a   taint   in   some   of  it,  Justice 
Heath  decldetl  "that  the  contract  amounted  to  a  warranty  that 
it  was  prime  singed  bacon,  and  bein-  in   writin-   could   not  lie 
added  to  by  parol  evidence."     And  on  motion  to  set  aside  the 
verdict,  the  opinion  of  the  learned  judge  was  sustained  by  the 
court  of  common  pleas.     In  Spehhird  v.  Kain,  5  I'.arn.  &  Al.l. 
240,  an  action  on  the  case  for  breach  of  warranty,  the  only  evi- 
dence of  which  was  the  advertisement  of  a  vessel    as  "copper- 
fastened,"  yet  sold  with  all  faults,  upon  proof  that  she  was  only 
partially  copper-fastened,  Hest,  J.,  determined  that  the  plain- 
tiff was  entitled  to  recover ;  and   this   opinion   was   athrmed    in 
the  court  of  king's  bench.     These  are  cases  in  which  was  rec- 
ognized an  express  warranty  of  quality  from   the  mere  state- 
ment thereof  in  the  sale  note  or  advertisement. 

As  establishing  a  contrary   doctrine   has   been    cited    for   the 
appellee  the  case  of  Jendwine  v.   Slade,   a  nisi  prius  decision 
of  Lord  Kenyon  in  3  Esp.    572.     The   action  was  brought  to 
recover  damages  on  the  sale  of  two  pictures,  sold  under  a  cata- 
logue wherein  the  names  of  the   artists,   who  had   been  dead 
some    centuries,    were    placed    opposite    to    the    pictures;    the 
ground  of  action  being  that  the  pictures  were  not  the  works  o. 
those  artisvs,  of  which  it  was  alleged  the  catalogue  was  a  war- 
ranty.    Lord  Kenyon  said:   "It  was   impossible   to   make  this 
the  case  of  a  warranty ;  the  pictures  were  the  works  of   artists 
some  centuries  back,  and  there   being  no  way   of  tracing  the 
picture  itself,  it  could  only  be  matter  of  opinion  whether   the 
picture  in  question  was  the  work  of  the   artist  whose  name  it 
bore,  or  not.     What  then  does  the  catalogue  import?     That  in 
the  opinion  of  the  seller  the  picture   is  the  work  of  the  artist 
whose  name  he  has  affixed  to  it."     Looking  only  to  the  facts  in 
the  case  of  Jendwine  v.  Slade,   and   the  decision   of  the  judge 
upon  them,  it  might,  perhaps,  be  considered  as  entitled   to  all 
the  weight  in  favor  of  the  appellee,    which  his  counsel  have 
ascribed  to  it.     But  when  the  explanation   and   grounds  of  the 
opinion  as  given  by   the  judge   himself  are  reverted    to,  their 
only  application  to  the  case  at  bar  is  to  recognize  the  plaintiff's 
right  to  recover.     He  states  that  it  is  impossible  to  make  put- 


'  '"i 


IIOI'KIITV. 

46,   an  action 

enmity  or  oh- 

ales  of  prime 

of  it,  Tnstice 

warranty  that 

could    not  lie 

0  set  aside  the 
stained  by  the 

I'.arn.  &  Aid. 
,  the  only  evi- 
;1    as  "copper- 
it  she  was  only 
hat  the  plain- 
as   atlirmcd    in 
^vhich  was  rcc- 
he  mere  state- 
cited   for   the 
prills  decision 
k'as  brought  to 
d  under  a  cata- 
lad   been   dead 
pictures ;    the 
t  the  works  o.^ 
ue  was  a  vvar- 
;   to   make  this 
torks  of   artists 
of   tracing  the 
)n  whether   the 
whose  name  it 

1  port?  That  in 
rk  of  the  artist 
ly  to  the  facts  in 
n   of  the  judge 

entitled  to  all 
is  counsel  have 
grounds  of  the 
verted  to,  their 
ze  the  plaintiff's 
e  to  make  put- 


OSGOOD    V.   LEWIS. 


595 


ting  the  name  of  the  artist  in  the  catalogue  opposite  the  picture 
a  warranty,  because  it  was  the  work  of  an  artist  some  centuries 
hack;  ami  tlicre  being  no  way  of  tracing  the  picture  itself,  it 
could  only  be  matter  of  opinion  whether  the  picture  in  iiuestion 
was  the  work  <>f  an  artist  to  whom  it  was  imputed  or  not. 
Suppose,  instead  of  an  ancient,  it  had  been  a  picture  of  recent 
execution,  what  then,  by  necessary  inference,  would  have  been 
tlie  opinion  of  the  learned  judge?  Why,  as  there  did  exist  a 
mode  "of  tracing  the  picture  itself,"  therefore,  by  placing 
the  name  of  the  artist  in  the  catalogue,  opposite  the  picture,  is 
not  a  mere  expression  of  the  opinion  of  the  seller  but  a  vvar- 
1  ;uitv  of  the  fact.  The  oil  in  controversy  is  no  articlq  of  an- 
ticiuity,  it  was  manufactured  but  a  short  time  before  in  Xan- 
tucket,  where  Lewis  resided,  and  whence  he  brought  it  to  Bal- 
timore and  sold  it  as  his  own.  Without  great  mconsistency 
iind  abandonment  of  his  own  reasoning.  Lord  Kenyon  (who 
decides  Jcndwine  v.  Slade)  could  not  do  otherwise  than  deter- 
mine that  the  statement  in  the  bill  of  parcels  that  the  oil  was 
••winter-pressed"  was  a  warranty  thereof. 

As  a  general  proposition,  it  is  true  that  in  sales  of  personal 
property  the  seller  is  not  answerable  for  any  defects  in  the  qual- 
ity or  condition  of  the  article  sold,  without  an  express  warranty 
or  fraud.     Hut  the  universality  of  this  rule  is  qualified  by  many 
exceptions  much  more  inconsistent  with  it  than  the  principle  on 
which  the  appellants  here  rest  their  right  to   recover.     As  if  a 
manufacturer  contract  to   furnish   goods   at  a   stipulated  (even 
tliough  it  be  reduced)  price,  there  is  an   implied  warranty  that 
the  goods  delivered  be  of  merchantable  quality.     To  this  effect 
is  the  case  of  Laing  v.   Fidgeon,  6  Taunt.    108.     So,   also,  if 
the  buyer  had  no  opportunity  of  ascertaining  by  inspection  the 
(luality  of  the  article,  there  is  an  implied  warranty  that  it  he  salable 
in  the  market  under  the  denomination  by  which  it  was   sold. 
Such  are  the  cases  of  Gardiner  v.    Gray,    4  Campb.    144,   and 
r.ridge  V.  Wain,  i  Stark.    504.     It   is    not   sufficient   that   the 
article  delivered  abstractly  bear  the  name  of  that  contracted  for ; 
it  must  do  more ;  there  is  an  implied  warranty  that  it  be  of  that 
(luality  which  a  commodity  of  that  name   must  possess  to  be 
>alable  in  the  market.     Nay,  such  is  the   disposition   of  courts 
(if  justice  to  ingraft  exceptions   upon  this  general  rule  of  law 
that  in  Gray  and  another  v.  Cox  and  others,  in  4  Barn.  &  Cres. 


5,/,       MODKS  OF  ODTA.NMNO  Trn.E  TO  fKHSONA,.  rUOPKH TV. 

,oS.  Al.l.ott,  C.  T.,  'l-'i'le'l.  -thai  the  defendants  havinR  sold 
the  copper  to  be 'applied  to  a  speciHc  purpose,  and  hav.njj  re- 
ceived  tor  it  the  market  price  of  the  day,  must,  m  law,  he  con- 
sidered  as  warranrin,^  it  to  he  reasonably  tit  for  that  purpose. 
\,ul  the  sa.ne  doctrine  was  previously  avowed  m  liiuett  v. 
Osborn  and  another,  .  Stark.  3S4,  by  Lord  EUenborongh,  who 
Mated,  that  "a  person  who  sells  impliedly  warrants  that  the 
thine  sold  shall  answer  the  purpose  for  wh.ch  it  was  sold. 

The  cases  of  Seixas  v.  Woods,   2  Cai.  4^,   2  Am.  Oec  2,,, 
,„d    Swett  V.  Colgate,  20  Johns.  ,9^>,   n  Am.  Dec    266,  Ime 
been  mainlv  relied  on  for  the  appellee  and  .t  must  be  adm.  ted 
t,„l  ,.,or.  ti.e  principles  on  which  they  are  professedly  deeded, 
it  is  not  possible  to  reconcile   them   with   the  dec.s.ons  m  Kng- 
land  which  have  been  referred  to.     Regarding  the  facts  only  of 
these  New  York  cases  it  might  perhaps  be  urged   (but  whether 
upon  sustainable  ground  or  not,   we  mean  to  intimate  no  opm- 
ion)  that  they  differ  from  the  case  at  bar  .n  th.s :  here  the  sta  e- 
n,ent  relied  on  as  a  warranty  is  of  the  qual.ty  of  the  thuig  sold, 
vi/.  •   th-.t  it  was   -winter-pressed;"    there   the  question  was 
whe'ther  the  selHng  an    article    as  bra.illetto  or  b.uillas    creates 
an   implied  warranty  that  it  be  that  for  which  .t  .s  sold.     1  he 
court  there,  however,  have  placed  their  opinions  upon  no  such 
distinctions;  but  have  broadly  determined  that  the  shown,g  by 
the  seller  to  the  purchaser,  of  the  invoice  representmg  the  qua  - 
itv,  the  advertisement  of  sale,  and  bill  of   parcels   debvered  to 
tlie  buyer,  all  representing  ihe   same  fact,  are  no  ev.dence  of  a 
varranty  (either  express  or  implied)  of  the  qual.ty  of  the  art. 
cles  sold.     Justices   Thompson  and  Kent  by  whom  Se.xas  v. 
Woods  w.as  decided  (Lewis,  C.  J.    having  dissented)  appear 
mainly  to  found  their  opinion  upon  the  two  old  cases  of  Chan- 
delor  V.  Lopus  and  Springwell  v.  Allen,  to  the  former  of  wh.ch 
thev  are  made  by  the  reporter  to  give  an  entirely  new  version. 
They  state  the  decision  of  the  court  to  have  been  that  an  action 
of  trespass  would  not  lie  for  selling  a  jewel,  affirming  U  to  be 
.  bezar   stone  when   in   truth  it  was  not,  unless  the  defendant 
i,,ew  it  not  to  be  a  bezar  stone,  or  had  warranted  it  to  be  such 
The  court  in  that  case  made  no  such  decision.     They  held   he 
declaration   to  be    ill,  "forasmuch  as  no  warranty  is  alleged 

1     wlrlty  having  only  stated  that  the   f^-'^h  "affirmed 
to  Lopus  that  the  stone  was  a  bezar  stone  ").     And  so  far  from 


:■;■: 


'KOI'KK  TV. 

ts  having  sold 
ml  haviii^j  re- 
II  law,  I'o  con- 
that  purpose." 
;d  \<^  Hiuctt  v. 
ilioroiigh,  who 
rants    that  the 
was  sold." 
,\iTi.  Dec.  315, 
Dec.  266,  have 
jst  he  admitted 
isscdly  decided, 
cisions  in  Kng- 
he  facts  only  oi 
d   (bnt  whether 
timale  no  opin- 
:  here  the  state- 
E  the  thing  sold, 
le  question  was 
harillas,  creates 
it  is  sold.     The 
IS  upon  no  such 
the  showing  by 
icnting  the  qnal- 
els   delivered  to 
JO  evidence  of  a 
ality  of  the  arti- 
vvhom  .Seixas  v. 
ssented)   appear 
d  cases  of  Chan- 
former  of  which 
ely  new  version, 
en  that  an  action 
affirming  it  to  be 
2SS  the  defendant 
ted  it  to  be  such. 
.     They  held  the 
ranty  is  alleged  " 
dsmith  "  affirmed 
And  so  far  from 


osciooo  V.  m;wis. 


597 


inlimatlng  an  opinion  tliat  the  action  could  have  l-con  sustained 
it  the  goldsmith  had  known  the  stone  not  to  I'c-  a  l-c/.ar  stone, 
they  expresslv  state  that  "  although  he  knew  it  to  be  no  l.e/.ar 
stone  ■<  is  not  material;  for  every  one  in  selling  his  wares  will 
allirm  that  his  wares  are  good,  or  the  horse  wliich  he  sells  is 
sound;  yet  if  he  does  not  warrant  them  to  be  so  it  is  no  cause 
„f  action."  As  to  Springwell  v.  Allen  it  professes  to  settle 
precisely  the  same  question  which  arose  in  Dak's  case ;  that 
„o  action  would  lie  against  a  man  selling  the  horse  of  another 
which  he  believed  to  he  his  own.  Many  other  cases  are  relied 
on.  in  Seixas  v.  Woods,  some  of  which  are  applicable  to  sales 
of  real  propertv  only  and  in  none  of  them  n  aught  be  found 
further  sustaining  the  opinion  there  pronounced  or  more  strong- 
ly militating  against  that  now  given  than  the  general  rule 
before  laid  down,  that  in  sales  of  personal  propeity  no  war- 
ranty of  qnalitv  is  implied. 

The  case  of 'Swett  v.  Colgate,    20  Johns.  196,  11  Am.  Dec. 
:66,  is  in  fact  a  mere  reiteration  of   what  was  decided  in  Seixas 
V   Woods.       The  weight  of  the   authority  of  Seixas  v.  Woods 
(and  consequcntlv  of  Swett  v.  Colgate)  is   however  somewhat 
shaken  by  that  distinguished  jurist,  the  late  Chancellor  Kent, 
by  whom  it  was  decided.    In  his  Commentaries,  vol.  2,  p.  274, 
27s,  after  ample  time  for  the  most  thorough  investigation  and 
mature  deliberation  upon   the   subject,   when   treating  "  of  the 
implied  warranty  of   the    articles   sold"  he  says:      "  In  Seixas 
v.  Woods  the  rule   was   examined   and   declared   to  be   that  i£ 
there  was  no   express  warranty   by   the   seller,  or  fraud  on  his 
part,  the  buyer  who  examines  the  article  himself  must  abide  by 
ail  losses  arising   from   latent  defects  equally  unknown  to  both 
parties;   and   the   same   rule  was   again  declared  in  Swett   y. 
Colgate.       There  is  no  doubt  of  the  general  rule  of  law  as  laid 
down  in  Seixas  v.  Woods  and  the  only  doubt  is  whether  it  was 
well   applied   in  that  case,  where   there  was  a  description  in 
writing  of  the   article  by  the  vendor,  which  proved  not  to  be 
correc't  and  from  which  a  warranty  might  have  been  inferred." 
But  yield  to  those  cases  (what  we  think  them  by  no  means 
entitled   to)   the   full   extent  of  establishing  the  universality  of 
the  rule,   without   an   exception,   that  nothing  but  an  express 
warranty  or  fraud  will  enable  a  purchaser  to  obtain  an  indem- 
uity   for   a  defect  of  quality   in  the  thing  purchased,  the  case 


■M 


59S       MllDKS  <)!■   OIlTAINIVr,  THr.K  TO  I'EK.SONAI.  I'llOPEUTY. 

before  lis  stands  imaffectcil  l.y  it.  The  sti.fcment  in  the  Mil  of 
]^^\\•v\s  tliat  the  oil  was  "  wintcr-prcssid"  is  ii'<,'anUv  as  an 
fsi)riss  Nvananlv;  an.l  nnder  llic  .licisions  in  Hatturs  v.  Sellers 
.V  ratters(,n,  6  I'lavr.  »V  .lolni.  J.|o.  y  Am.  Dec.  49J,  the  comi 
and  not  the  jury  is  the  tril.nnal  so  to  dedaic  it.  The  opinions 
of  Ihc  county  court,  therufoie.  in  none  of  the  exceptions  can  he 
sustained. 

But  suppose  the  hill  of  parcels  is  not  to  be  construed  in  the 
same  manner  that  a  written  a<,'reement  betueen  the  parties 
should  be,  and  is  to  be  regarded  as  a  mere  receipt,  and  that, 
notuithstandin},'  the  case  of  IJatturs  v.  .Sillers  &  Patterson,  6 
llarr.  i\:  John.  249,  parol  evidence  mifjht  be  offered  to  prove 
the  contract,  is  it  possible  that  a  jury  could  attach  less  weight 
to  the  written  statemef  t  in  the  bill  of  parcels  llian  they  would 
jIo  to  Lewis'  verbal  alhrmation  of  the  same  fact;  which  aflir- 
nialion  is  an  express  warranty,  if  so  intended  to  be.  of  which 
intention    in   oral   contracts,   the  jury  only   are   competent   to 

jud^e> 

Adverting  then  to  some  of  the  leading  facts  in  proof  by  the 
appellants,  tliat  they,  for  the  first  time,  were  about  to  become 
dealers  in  sperm  oil;  that  winter-pressed  was  of  nearly  double 
tlie  value  of  summer-pressed  oil;  that  the  price  paid  was 
that  of  winter-pressed  oil;  that  such  was  the  tempera- 
tnre  of  the  weather  at  the  time  of  sale  that  the  most  experi- 
enced dealers  in  the  article  coiild  not  distinguish  the  one  from 
the  other  but  by  the  aid  of  chemical  experiments  by  men  of 
science;  that  in  the  bill  of  parcels  it  was  denominated  "  win- 
ter-pressed "  oil ;  and  the  appellee  admitted  that  he  had  sold 
it  for  the  best  winter-pressed  oil,  and  that  it  was  not  what  he 
had  sold  it  for— can  the  instructions  given  to  the  jury  (as  stated 
in  the  fourth  exception)  that  there  was  no  evidence  of  a  war- 
ranty, be  for  one  moment  sustained?  Would  it  have  been  an 
unreasonable  inference  from  the  facts  to  be  drawn  by  the  jury 
that  in  the  verbal  contract  the  appellants  required  and  received 
a  warranty  of  quality?  Upon  what  other  ground  can  its  inser- 
tion in  the  bill  of  parcels  be  accounted  for? 

It  matters  not  that  this  testimony  be  contradicted,  its  force 
impaired  by  the  proof  adduced  on  the  part  of  the  appellee ;  in 
such  circumstances  it  is  the  jury,  not  the  court,  who  are  to 
decide. 


■f 


'4 


H 


;  -i 


I- 


<i 


ntoi'Kuiv. 

nt  111  the  1)111  of 
iif^ariltv  as  an 
atturs  V.  Sellcr.s 
.  49 J,  the  court 
The  opinions 
;ceptions  can  he 

;onstnJcil  hi  the 
cen  the  parties 
iceipt,  aiul  that, 
i  &  Patterson,  6 
offered  to  prove 
tach  less  weight 
[han  they  wonid 
t;  which  aflir- 
to  be,  of  which 
c   competent   to 

;  in  proof  by  the 
bout  to  liecome 
)l'  nearly  double 
price  paid  was 
IS  the  tempera- 
tlie  most  experi- 
ish  the  one  from 
nents  by  men  of 
ominated  "  win- 
that  he  had  sold 
was  not  what  he 
c  jury  (as  stated 
idcnce  of  a  war- 
1  it  have  been  an 
rawn  by  the  jury 
red  and  received 
nid  can  its  inser- 

ndictcd,  its  force 

the  appellee ;   in 

ourt,  who  are  to 


8E1TZ    V.nilEWEHs'    IlEFUUlKnATlSc;    MACII.  CO.  599 

Dissenting  fmm  the  opinions  of  the  county  court,  on  all  the 

exceptions,  let  their 

Judtjment  be  reversed  and  a  procedendo  awarded. 

CoNsuLT-Lnmme  V.  r.reRK,  i  Mete.  414.  7'  Am-  ^ec.  480;  Becman 
V.  lUu:k.  ,  Vt.  5^.  ^«  Am.  Dec.  57,  ;  WHim-r  v .  Clement  37  I  "■  •'^f-  147, 
2SAm.  i)ee.  41- 1  Towell  v.  Gutcwood,  3  HI-  2--  .U  Am.  ec.  |.?7 ! 
lioal.  V.  Olmstead,  .4  Vt.  114,  SS  Am.  Hec.  150;  Wolcott  v.  Mount  36 
V  1  (\..)  2r.2,  II  .\m.  Rep.  43^;  tenner  v.  Uar.linj,'.  S,;  111.  2^,  2H  Am. 
,,  Kobson  V.  Miller,  .2  S.  C.  5S6,  3^  Am.  Rep.  5.8.  ^=now  v. 
a.acher  Co.,  r.9  Ala.  in.  44  Am.  Rep.  5«r.  l^'^w  v.  i:amund»,  60 
Vt.  31J,  6  Am.  St.  Rep.  122;  Warder  v.  Bowen,  31  Minn.  335. 


§  100.    Same-  Oral  warrantie.s. 
SEITZ  V.  BREWER.S'  REFRIGERATING  MACII.  CO. 

[141  U.  S.  sio.] 
SKfrone  Court  of  the  United  States,  J8gi. 

In  error   to  the   circuit  court  of  the   United   States   for  the 
eastern  district  of  New  York. 

\ction  by  the  Brewers'  Refrigerating  Machine  Company 
nst  Michael  Seilz.  There  was  judgment  for  plaintiff  on  a 
,.ct  directed  by  the  court,  and  defendant  brings  error. 

FiLi  KK,  C:.  J.— This  was  an  action  brought  by  the  Brewers 
U.frigcrating  Machine   Company  against  Michael  Seitz  uj.on 
il.e  following  contract:    "This  agreement,  made   this   eleventh 
,!  .V  of  January,  A.  D.  1S79,  between  the  Brewers'  Retnger- 
;,tin.'  Machine  Company  of  Alexandria,  Virginia,  party  of  the 
thst^part,  and   Michael   .Seitz,  of   Brooklyn,  New   York,  party 
,f  the  second  part,  witnesseth :    That  the  party  of  the  first  part 
hereby  agrees  and   contracts  to  supply  t^.e  party  of  the  second 
ivut  with  a  No.  2  size  refrigerating  machine,  as  constructed  by 
the  said   party  of  the  first  part,  by  the  fifteenth  day  of  March 
next,  or  as  soon  thereafter  as  possible,  the  machine  to  be  dehv- 
ned  at  the  depot  or  wharf  in  Philadelphia,  Pennsylvania,  and 
t..  be  put  up  and  put  in  operation  in   the  brewery   of   the  said 
party  of  the  second  part  at  338-264  Maujer  street,  at  Brooklyn, 
v..  D.,  New  York,  under  the  superintendence   of  a  competent 


Coo       MODES  OF  ORTAINMNG  TITI^E  TO  PERSONAL  PROPERTY. 

man  furnished  by  the  said  party  of  the  first  part.  The  party 
of  the  second  part  hereby  agrees  and  contracts  to  pay  to  the 
said  party  of  tlie  first  part  for  said  machine  the  sum  of  nine 
thousand,  four  hundred  and  fifty  dollars  ($9,450.00)  in  manner 
as  follows,  namely:  Four  thousand,  seven  hundred  and  twenty- 
five  dollars  ($4,7^5-00)  on  the  day  when  the  machine  .s  put  m 
operation  at  the  brewery  of  the  said  party  of  the  second  part,  and 
the  balance  of  four  thousand,  seven  hundred  and  twenty-five 
dollars  ($4,725.00)  in  three  equal  installments;  that  is  to  say. 
one  thousand,  five  hundred  and  seventy-five  dollars  ($i,575-oo) 
for  each  installment,  payable,  respectively,  in  one  (i),  two 
(2)  and  three  (3)  months  after  the  day  when  the  machme  is 
put 'in  operation  at  the  brewery  of  the  said  party  of  the  second 
part,  for  which  installments  the  said  party  of  the  second  part 
agrees  and  contracts  to  give   his  notes  on  the  day  last  men- 

tioned." 

The  complaint,  after  setting  forth  the  execution  of  the  con- 
tract  on  the  eleventh  of  January,  A.  D.  1879,  alleged  compli- 
ance therewith  in  every  respect  by  the  plaintiff   and   breach  of 
promise   to  pay  the   purchase  price.     The  defendant  stated  m 
his  answer,  among  other  things,  "that  the  machine  placed   in 
defendant's  brewery  was  worthless,  and  incapable  of  operating 
to  produce  the  results  represented  by  plaintiff  to  this  defendant 
as  an  inducement  to  enter  into   the   aforesaid   agreement;   that 
said  machine  has  not  been  accepted  by  this  defendant,  nor  oper- 
ated, or    attempted  to  be   operated,  by   defendant,  his  agents, 
employees,  nor  any  other  person  acting  by  or  under  his  author- 
ity   and  did  not  pass  out  of  the  control  of  the  plaintiff;  nor  has 
the'  said  machine  been  used  by  him  in  his  said  brewery,  because 
said    machine    was   worthless,   and   incapable    of    serving  any 
useful  purpose  therein."     And  defendant  also  averred,  by  way 
of  counterclaim,  that  he  had  sustained   damages  by  reason  of 
false  and  fraudulent  representations  by  plaintiff  as  to  what   •;he 
machine  would  accomplish,  in  reliance  upon  which  he  had  per- 
mitted his  brewery  to  be  subjected  to  the  action  of  said  machme, 
and  suffered  loss  accordingly.    Upon  the  trial  before  the  circuit 
i«d-e   and  a  jury,  plaintiff  proved  that  a  No.  2  size  refrigerat- 
ing" machine,   as   constructed  by   the    Brewers'    Refrigeratmg 
Machine  Companv,  was  supplied   defendant,  and  put  up  and 
put  in  operation  in  his  brewery  by  it   in   accordance   with   the 


SONAL  PROPERTY. 

first  part.  The  party 
;ontvacts  to  pay  to  the 
line  the  sum  of  nine 
$9,450.00)  in  manner 
I  himdrcd  and  twenty- 
I  the  machhie  is  put  in 
oi  the  second  part,  and 
idred  and  twenty-five 
Iments;  that  is  to  say. 
vedolhxrs  ($i,575-Oo) 
ve\y,  in  one  (i),  two 
y  when  the  machine  is 
id  party  of  the  second 
y  of  the  second  part 
on  the  day  last  mcn- 

;  execution  of  the  con- 
1879,  alleged  compli- 
laintiff  and  breach  of 
?he  defendant  stated  in 
;he  machine  placed   in 

incapable  of  operating 
lintiff  to  this  defendant 
esaid  agreement;  that 
lis  defendant,  nor  oper- 

defendant,  his  agents, 
by  or  under  his  author- 
)f  the  plaintiff ;  nor  has 
s  said  brewery,  because 
apable  of  serving  any 
It  also  averred,  by  way 
damages  by  reason  of 
plaintiff  as  to  what  ';he 
jpon  which  he  had  per- 

action  of  said  machine, 
e  trial  before  the  circuit 

a  No.  2  size  refrigerat- 
Brewers'  Refrigerating 
endant,  and  put  up  and 
n   accordance   with   the 


SEITZ    V, 


brewers'   refrigerating    MACH.   CO. 


601 


,erm«        V  contract.     Defendant  thereupon  asked  to   amend 

is  u^ner,  "to  set  up  that  defendant  entered  mto  that  contract 

;:  :;.  ;f  fiaudmint  representations  on  the  part  of  tins  com- 

;,  ;  ..     The  amendment  was  allowed,  and  was   m   substance 

it  plaintiff  represented  that  the  machine  was  capable  of  cool- 

:   c  r      ,  voo,ns  ir-  the  brewery  which  had  been  examn.ed  by 

;in  iff  •  but  the  machine,  when  set  up  and  operated  was  not 
^^f  ile,  and  failed  to  perform  the  work  for  w  i.ch,  upon 
he  ■  p  ese^tations   of  the  plaintiff,  the  machine  had  been  con- 

.  c  eclfor  by  defendant;  that  defendant  contracted  to  purchase 
hem  chine  upon  the  guaranty  by  plaintiff  to  defendan    that  .t 

cuM  cool  ceJtain  rooms,  and  it  was  upon  that  guaranty  alone 
h"  defendant  entered  into  the  contract;  that  defe  d  n 
lu  red  into  the  contract  upon  the  representations  of  the 
;  n  iff  to  the  effect  that  the  No.  ^  machme  reterred  to 
e  contract  set  forth  in  the  complaint  woud  cool  and 
"a  capable  of  coolmg  a  space  of  150,000  cubic  feet  of  a.r 
:    ::Ls^y  to   .  temperature  sufficiently   'ow  Jor       e    piir- 

^- ^' '-'^' ::  ^::^t::::  ^:  :^^^'^^^ 

lin>\A,erv  or  premises,  tnal  is  10  say,   i"   '  t 

'e  .hl^orhood  of  forty  degrees  Fahrenheit;  and  that  the  plain- 
"ff  knew,  at  and  before  the  time  when  the   contract  was  made 
ha     he  representations  made  to  the  defendant  were  false  and 
ifo  inded!  and  knew  that  the  said  No.  2  machine  was  no   cap- 
e  o     P  rforming  the  work  which  plaintiff  represented  it  as 
1    ing   capable   of   performing,   and    knew   that   the    machme 
!;::;;fd  be' worthless   to   the    defendant   for   the    purposes    for 
which  defendant  contracted  for  it  and  intended  to  use  it 

Evid..'ce  on  defendant's  behalf  was  then  admitted,  tending 

to  show  that,  prior  to  the  execution  of  the   -trac^  plauUiff  s 

agents  had  represented  that  the  machine   would   -ool  1^0,000 

ubic   feet   to   forty   degrees  Fahrenheit;   that  defendan    had 

^co  ing  his  brLeiT  with  ice,  and  wished  the  machine  to 

the  rooms  to  about  the  same  extent;  and  that  the  machme 

,id   not  cool  the  rooms  as  desired.     On  cross-examination  of 

the  defendant's  agent,  it  appeared  that  on  January    13.  iS/9, 

he  wrote  to  the  secretary  of  the  refrigerating  '^^-P'-^y ;        ^; 

speaking  to  Mr.  M.  Seitz  to-day  he  said  that  your  ag.  cement 

.        ve^y   unsatisfactory  to  him;  in  fact,  that  before    e  would 

..et  the  Machine  that  he  wanted   a  written  guaranty  from  you 


6o2       MODES  OF  OBTAINIXG   TITI.E  TO  PEUSONAI.  PROPERTY. 


that  you  would  cool  his  building,  which  you  have  seen,  to  three 
and  one  half  Reaumur,  and  keep  it  at  that  all  the  time ;  other- 
wise he  would  not  have  the  machine,  as  he  would  have  no  use 
for  it,  as  he  would  have  to  put  himself  to  great  cxpenra  and 
great  risk  at  the  same  time."  To  which  plaintiff  responded, 
January  20:  "I  regret  to  hear  that  Mr.  Seitz  feels  dissatisfac- 
tion with  the  contract  made  with  him.  The  guaranty  he  now 
asks  for  in  addition  it  would  not  be  proper  for  us  to  give,  as 
Mr.  Seitz  himself  will  see  on  further  reflection,  we  think.  The 
maintenance  of  a  certain  temperature  in  his  rooms  is  not  solely 
dependent  upon  our  machines;  in  fact,  there  are  a  great  many 
other  things  entirely  beyond  the  control  of  the  machine  which 
influence  this  temperature.  The  mode  of  working  the  rooms, 
the  water  used  for  washing,  the  fermentation,  and  many  other 
things  might  be  mentioned  in  this  connection  as  matters  which 
we  can  not  control,  and  which,  nevertheless,  are  most  import- 
ant considerations  in  the  maintenance  of  a  given  temperature. 
We  are  confident,  from  the  experience  with  the  Portner 
machine  during  last  summer  and  fall,  that  the  machine  sold  to 
Mr.  Seitz  will  not  only  give  him  the  desired  low  temperature, 
but  will,  in  addition,  give  him  what  he  never  before  had  in  the 
warmer  months,  namely,  pure  and  dry  air.  The  machine  we 
are  building;  for  him  is  in  many  respects  far  superior  (aside 
from  size)  to  the  Portner  machine,  and  when  he  has  had  it  a 
year  we  believe  he  would  not  part  with  it  for  any  money,  if  he 
could  not  replace  it.  That  we  must  decline  to  guaranty  what 
Mr.  Seitz  asks  for  is  simply  for  the  reasons  Plated.  There  are 
too  many  side  considerations  entirely  beyond  the  control  of  the 
machines.  We  would  add  that  we  have  not  in  any  instance 
been  asked  for  such  a  guaranty  as  a  condition  of  sale,  but  that 
all  the  parties  to  whom  we  have  sold  bought  on  our  represen- 
tations, and  what  they  have  seen  and  heard  of  the  working  of 
the  Portner  machine."  On  January  2i,  1S79,  defendant's 
agent  telegraphed  plaintiff :  "Will  you  defend  any  infringe- 
ment suits  against  Mr.  Seitz  for  using  your  machine?"  and  on 
January  33,  1S79.  wrote:  "The  machine  sold  to  Mr.  M.  Seitz 
is  all  right,  and  can  be  sent  at  any  time  that  it  is  ready."  On 
the  sixteenth  of  March  he  again  wrote  plaintiff :  "Mr.  Seitz 
would  like  to  have  you  to  commence  at  once  putting  up  his 
machine."  The  defendant  having  rested,  the  court,  on  motion, 


'ROPERTY. 

!  seen,  to  three 
2  time ;  other- 
Id  have  no  use 
it  expenrs  and 
iff  responded, 
;ls  dissatisfac- 
iranty  he  now 
us  to  give,  as 
ve  think.  The 
IS  is  not  solely 

a  great  many 
nachine  which 
ing  the  rooms, 
d  many  other 
matters  which 
;  most  import- 
1  temperature. 
I  the  Portner 
jchine  sold   to 

temperature, 
tore  had  in  the 
e  machine  we 
superior  (aside 

has  had  it  a 
y  money,  if  he 
guaranty  what 
i.     There  are 

control  of  the 
a  any  instance 

sale,  but  that 
our  represen- 
he  working  of 
c),  defendant's 

any  infringe- 
hiner"  and  on 

Mr.  M.  Seitz 
i  ready."  On 
ff:  "Mr.  Seitz 
putting  up  his 
irt,  on  motion, 


SEITZ    V 


brewers'  refrigerating  mach.  CO.         603 


airccted  a  verdict  for  the  plaintiff  for  the  amount  claimed.  The 
circuit  judge  remarked  to  the  jury  that  the  only  defense  worthy 
of  consideration  was  that  the  machine  was  sold  to  the  dcfcnd- 
,nt  under  fraudulent  representations  by  the   plamtiff  s  agents, 
',nu  that  there  was  no  evidence  of  fraud  whatever  m   the  case ; 
that  there  was  evidence  to  show  that  the  machine  did  not  work 
satisfactorily,  and  the  jury  were  doubtless   authorized   to   u.fer 
that  it  did  not  have  the  capacity  of   cooling   150,000  cubic  feet 
to  the  degree  stated,  but  that  there  was  a  written  contract  m 
the  case,  which   contained   no  warranty,  and,  consequently,  .£ 
,he  machine  did  not  fulfill  the  expectations  of  the  defendant,  or 
if  it  did  not  fulfill  verbal  representations  made  at  the  tune  the 
contract   was   entered   into,    nevertheless,    defendant    had    no 
defense;  that  there  was  no  evulence   that  false  or  fraudulent 
representations  had  been   made;  that  the   machme  had  been 
built  and  put  up  pursuant  to  the  written  contract;  and  that  the 
defendant  could  not  be  permitted,  upon  the  general  theory  th a 
the  machine  was  not  a  satisfactory  article,  to  defeat  the  plamt.ff 
from  recovery.     The  verdict  having  been  rendered  as  du-ected, 
,,,,  judgment  entered  thereon,  the  cause  was  brought  here  on 

writ  of  error.  •    1        j  u„ 

If  the  defense  were  solely  that  the  defendant  was  induced  by 
i  dse  and  fraudulent  representations   to  enter  into  the  contract 
in   question,  it   is   conceded  that  the  circuit  court  did  not  err  m 
directing  a  verdict  for  the  plaintiff,  as  there  was  no  evidence  of 
fraud   in   the  case.     It  is  earnestly  contended,  however   that, 
,„Kler   the  answer  as  amended,  the   defendant  was   entitled   to 
■vail  himself  of  the  breach  of  an  alleged  contract  of   warranty 
or  euaranty  collateral  to  the   contract  of  purchase  and  sale;  or 
ol  an  implied  warranty  that  the  machine  should  be  reasonably 
i      ,lt  to  accomplish  a  certain  result.     Assuming  the  sufhcu^ncy  of 
,hc  pleadings  to  enable  the  questions  indicated  to  be  raised,  we 
.,c.  nevertheless,  of  opinion  that  the  direction   of   the  circuit 
curt  was  correct.     The  position  of  plaintiff  in  error  is    in  the 
.l,.t  place,  that  the  evidence   on  his   behalf   tended  to  show  an 
.acement    between    himself    and    defendant  in  error,  entered 
i,Uo  prior  to  or  contemporaneously   with   the  written   contract, 
r       independent  of  the  latter  and  collateral  to  it,  that   the    machine 
purchased  should  have  a  certain  capacity,  and  should  be   cap- 
..hle  of  doing  certain  work ;  that  the  machine  failed  to  come  up 


<5o4       MODES  OF  OBTAlMNCi  TITLE  TO  PEUSON'AL  I'UOl'EKTV. 

to  the  requirements  of  such  independent  parol  contract ;  that 
this  evidence  was  competent;  and  that  the  case  should,  there- 
fore, have  lieen  left  to  the  jury.  Undoubtedly,  the  existence 
of  a  separate  oral  agreement  as  to  any  matter  on  \\'iich  a 
written  contract  is  silent,  and  which  is  not  inconsistent  with  its 
terms,  may  he  proven  by  parol,  if,  under  the  circumstances  of 
the  particular  case,  it  may  properly  be  inferred  that  the  parties 
did  not  intend  the  written  paper  to  be  a  complete  and  final 
statement  of  the  whole  of  the  transaction  between  them.  But  such 
an  agreement  must  not  only  be  collateral,  but  must  relate  to  a 
subject  distinct  from  that  to  which  the  written  contract  applies; 
that  is,  it  must  not  be  so  closely  connected  with  the  principal 
transaction  as  to  form  part  and  parcel  of  it.  And  when  the 
\vritin<T  itself,  upon  its  face,  is  couched  in  such  terms  as  import 
a  complete  legal  obligation,  without  any  uncertainty  as  to  the 
object  or  extent  of  the  engagement,  it  is  conclusively  presumed 
that  the  whole  engagement  of  the  parties,  and  the  extent  and 
maimer  of  their  undertaking,  were  reduced  to  writing,  i 
Grcenl.  Ev.,  sec.  275. 

There  is  no  pretense  here  of  any  fraud,  accident,  or  mistake. 
The  written  contract  was  in  all  respects  unambiguous  and  def- 
inite. The  machine  which  the  company  sold,  and  which  Seitz 
bought,  was  a  No.  2  size  refrigerating  machine,  as  constructed 
by  the  company,  and  such  was  the  machine  which  was  deliv- 
ered, put  up,  and  operated  in  the  brewery.  A  warranty  or 
guaranty  that  that  machine  should  reduce  the  temperature  of 
the  brewery  to  forty  degrees  Fahrenheit,  while  in  itself  collat- 
eral to  the  sale,  which  would  be  complete  without  it,  would  be 
part  of  the  description,  and  essential  to  the  identity  of  the  thing 
sold;  and  to  admit  proof  of  such  an  engagement  by  parol 
would  be  to  add  another  term  to  the  written  contract,  contrary 
to  the  settled  and  salutary  rule  upon  that  subject.  Whether 
the  written  contract  fully  expressed  the  terms  of  the  agreement 
was  a  question  for  the  court,  and  since  it  was  in  this  instance 
complete  and  perfect  on  its  face,  without  ambiguity,  and 
embracing  the  whole  subject-matter,  it  obviously  could  not  be 
determined  to  be  less  comprehensive  than  it  was.  And  this 
conclusion  is  unaffected  by  the  fact  that  it  did  not  allude  to  the 
capacity  of  the  particular  machine.  To  hold  that  mere  silence 
opened   the  door  to  parol  evidence  in  that  regard  would  be  to 


r 


PIlOl'EIlTy. 

contract ;  that 
should,  therc- 
',  the  existence 
r  on  \\'iich  a 
sistent  with  its 
rcuinstanccs  of 
ihat  the  parties 
plete  and  tinal 
:hem.  IJut  such 
List  rehite  to  a 
ntract  applies ; 
1  the  principal 
And  when  the 
erms  as  import 
ainty  as  to  the 
ively  presumed 
the  extent  and 
to    writing,      i 

!nt,  or  mistake, 
guous  and  def- 
nd  which  Seitz 
as  constructed 
hich  was  deliv- 
A  warranty  or 
temperature  of 
in  itself  collat- 
ut  it,  would  be 
tity  of  the  thing 
nent  by  parol 
ntract,  contrary 
ject.  Whether 
'  the  agreement 
n  this  instance 
imbiguity,  and 
y  could  not  be 
was.  And  this 
ot  allude  to  the 
at  mere  silence 
ird  would  be  to 


SEITZ    V.   UKEWKIIS'    REl- UIGER ATIN(J    MACII.   CO. 


60^ 


l,e-  the  whole  question.  We  are  clear  that  evidence  tending  to 
.how  the  alleged  independent  collateral  contract  was  inadmis- 
sible. Martin  v.  Cole,  104  U.  S.  30;  Gilbert  v.  I'lough  Co 
■,  ,0  U.  S.  49t,  7  ^^^P-  Ct.  Rep.  305;  The  Delaware,  14  Wall. 
,jI;  Nauniberg  v.  Young,  44  N-  J-  Law  33-,  ^"-'"^  v 
na'.k,  121  Ind.  333,  "  N.  E.  Rep.  .50;  N-t  v.  Pearce  S 
low-.  S7Q,  S  N.  W.  Rep.  633,  and  iz  N.  W  .  Rep.  :,97 , 
Thomi^on  V.  Libby,  34  Mi""-  374-  a6  N.  W.  Rep  .  ,  Wilson 
V.  Decn,  74  N.  Y.  S3i  J  Robinson  v.  McNeill,  51  HI.  223. 

Failin-  in  respect  of  the  alleged  express  warranty,  plaintiff 
i„  error  contends,  secondly,  that  there  was  an  implied  warranty, 
„  ising  from   the  nature  of  the   transaction,  that  the   machine 
'should  be  reasonably  fit  to  accomplish   certain  results   to  effect 
which  he  insists  the  purchase  was  made.     It  is  argued  that  the 
evidence   tended  to  establish   that  the  plaintiff  knew  that  the 
defendant  had  been  cooling  his  brewery  with  ice,  and  that  the 
obiect   of    obtaining    the    machine  was  to  render  unnecessary 
the  expense  of  purchasing  <ce  for  that  purpose,   and  that  unless 
the   machine   would   cool   it  to   the   same  extent   or  about  the 
s:.me,  as  the   ice  did,  it  would  be  worthless,  so   far  as  he  was 
concerned.     It  is  not  denied  th.it  the  machine  was   constructed 
for  refrigerating  purposes,  and  that  it  worked  and  operated  as 
,  vefric^erating  machine  should;  but  it  is  said  that  it  did  not  so 
icfricre^ate  as  to  reduce  the  temperature  of  the  brewery  to  forty 
de<^rees   Fahrenheit,  or  to  a  temperature   which   would    enable 
deTendant    to    dispense    with   the  purchase   of   ice.     1  he   rule 
invoked  is  that  where  a  manufacturer  contracts  to  supply   an 
,,,icle  which  he  manufactures,  to  be   aoplied  to  a  particular 
purpose,  so  that  the  buyer  necessarily  trusts  to  the  judgment  of 
Ihe  manufacturer,  the  law  implies  a  promise  or  undertaking  on 
his  part  that  the  article  so  manufactured  and  sold  by  him  for  a 
specific  purpose,  and  to  be  used  in  a  particular  way,  is  reason- 
ilvfit  and   proper  for  the  purpose  for-which  he  professes  to 
•  nake  it,  and  for  which  it  is  known  to  be  required ;  but  it  is  also 
the  rule  as  expressed  in  the  text-books  and  sustained  by  au  hor- 
;tv     that   where   a  known,    described,    and   definite   article  is 
ordered  of  a  manufacturer,  although  it  is  stated  by  the  purchaser 
to  be  required  for   a   particular  purpose,   still,  if  the  known, 
described,   and  definite   thing  be  actually  supplied,  there  is  no 
^v'u-ranty  that  it  shall  answer  the  particular  purpose  intended 


6o6       MODK.S  OI-  OliTAIMXG  T1TI,K  TO  PEIISOXAL  PROPERTY. 

by  the  buyer.  Iknj.  Sales,  sec.  657;  Add.  Cont.,  bk.  3,  c.  7, 
p.  *977;  Chanter  v.  Hopkins,  4  Mecs.  iS:  W.  399;  Ollivant  v. 
Haylcy,  5  Q.  I?.  2SS ;  District  of  Columbia  v.  Clephane,  no 
U.  S.  21J,  3  Sup.  Ct.  Rep.  56S;  Bridge  Co.  v.  Hamilto  1,  no 
U.  S.  loS,  3  Sup.  Ct.  Rep.  537;  Hoc  v.  Sanborn,  3i  N.  Y. 
553;  Deming  V.  Foster,  42  X.  II.  165. 

In  the  case   at  bar  the   machine  purchased   was  specifically 
designated  in  the  contract,  and  the  machine  so  designated  was 
delivered,  put  up,  and  put  in  operation  in  the  brewery.      The 
only    implication  in  regard  to  it  was  that  it  would  perform  the 
work  the  described  machine  was  made  to  do,  and  it  is  not  con- 
tended that  there  was  any  failure  in  such  performance.      This 
is  not  the  case  of  an  alleged  defect  in  the  process  of  manufac- 
ture know  n  to  the  vendor,  but  not  to  the  purchaser,  nor  of  pre- 
sumptive and  justifiable  reliance  by  the  buyer  on  the  judgment 
of  the  vendor  rather  than  his  own,  but  of   a  purchase  of  a  spe- 
cific article,  manufactured  for  a  particular  use,  and  fit,  proper, 
and  efficacious  for  that  use,  but  in  respect  to  the  operation  of 
which,  in  producing  a  desired  result  under  particular  circum- 
stances, the  buyer  found  himself  disappointed.      In  short,  there 
was  no  express  warranty  that  the  machine  would  cool    150,000 
cubic  feet  of  atmosphere  to  forty  degrees  Fahrenheit,  or  any 
other  temperature,  without  reference  to  the  construction  of  the 
particular  brewery,  or  other  surrounding  circumstances.   ••   ',  if 
there  were  no  actual  warranty,   none  could  be   impu.-.         We 
may    add   that,   in  the  light  of   all  the  evidence  in  the  record, 
treated  as  competent,  we  think  no  verdict  could  be  permitted  to 
stand  which   proceeded   upon   the   ground  of   the   existence  of 
such  a  warranty  as  is  contended  for.      The  alleged  antecedent 
representations  as  to  whether  the   machine  possessed   sufficient 
refrigerating  power  to  cool   this  brewery  were  no  more  than 
expressions  of  opinion,    confessedly   honestly  entertained,   and 
dependent  upon  other  elements  than  the  machine  itself,  con- 
cerning which  plaintiff  in  error  could  form  an   opinion  as  well 
as  defendant ;   and  the  conduct  of  plaintiff  in  error  in  demand- 
ing, two  days  after  the   contract  was  executed,  a  written   guar- 
anty   that  the   machine    company   would  cool  his  building  to 
three  and  one  half  degrees  Reaumur  (or  forty  degrees  Fahren- 
heit), and  keep  it  at  that  all  the  time,  and  in  acquiescing  in  the 
company's  refusal  to  give  the  guaranty  for  reasons  slated,  and 


•ROPERTY. 


BYKNK    V.   JANSKN. 


607 


,,  bk. 


7> 


9 ;  Ollivant  v. 
Clepliaiie,  1 10 
Ilamilto  1,  1 10 
orn,  31  N.  Y. 

as  specifically 
esignatcd  was 
irewery.  The 
Id  perform  the 
d  it  is  not  con- 
mance.  This 
5s  of  manufac- 
;er,  nor  of  pre- 
1  the  judgment 
:hase  of  a  spe- 
ind  fit,  proper, 
le  operation  of 
ticular  circiim- 
In  short,  there 

1  cool  150,000 
•enheit,  or  any 
itruction  of  the 
stances.  ••  ',  if 
impui-.  We 
;  in  the  record, 
be  permitted  to 
ae  existence  of 
ged  antecedent 
essed   sufficient 

2  no  more  than 
iitertained,  and 
line  itself,  con- 
opinion  as  well 
rror  in  demand- 
a  written  guar- 
his  building  to 
legrees  Fahren- 
quiescing  in  the 
ions  stated,  and 


in  thereupon  afterward  ordering  the  company  to  go  on  w.th 
the  work,  as  exhibited  in  the  correspondence  between  the  par- 
lies, seems  to  us  to  justify  no  other  conclusion  than  that  rcaeheu 
hv  the  verdict.     The  judgment  of  the  circuit  court  .s  atbrmed. 


CONSVI.T- 


-Vincent  V.  Lelanci,  .00  Mass.  4,V;  Aultman  v.  Kennedy, 
r    Minn.    ^39;   Conner    v.    Chamberlain,   .4  Wis.  ^HH;   StoraRe  Co.  v. 
W00I.S.  9>;  Mic...   .67;  De  Witt  V.   Berry,   ,.U  l^  «.  .,0   ;  Chapui  . 
l^obson,  7S  N.  Y.  74,  34  Am.  Rep.   ,S12;   Mast  v.  Perce,  5b   la.  .79.  43 
Am.  Rep.  IJ5. 


§101.    Same-Expressions  of  opinion. 
BYRNE  V.  JANSEN. 

[50  Cal.  624.] 
Supreme  Court  of  California,  1875. 

Action  to  recover  damages    for  the   breach    of    an    alleged 
warranty    of   the  quality   and   condition   of  wool    sold    by  the 
defendant  to  the  plaintiff.     The  defendant  had  a  band  of  sheep 
in  San  Bernardino  county  and  on  the  twelfth  day  of  February, 
,S7-    O'Connell,  the  agent  of  the  plaintiff,  applied  to  h.m  to 
purchase  his  clip  of  wool  to  be  sheared  in   April   following. 
The  defendant  told   him  he  would  take   twenty-six  cents  per 
pound  and  at  the   same  time  stated  that  the  wool  would  be 
short,  that  the  sheep  were  poor  and  burry,  but  that  the  burrs 
<.enerally    fell    off   during    the    spring    rains.     He    also    told 
O'Connell  where  his  sheep  were  and   asked   him    if  he  wished 
to  see  them  and  the  latter  replied  that  he  did  not.     The  defend- 
,nt  and  O'Connell  knew  the  sheep  and  the  range  on  which 
they  were  kept  and  were  experienced  wool-buyers.     In  April, 
,87^    the   defendant  delivered   the   wool,  in  thirty-eight  bales, 
weiahing  nine  thousand,  five   hundred   and   forty-five   pounds. 
The" plaintiff  received  it  without  examination,  paid  for  it,  and, 
without  objection,  shipped  it  to  San  Francisco   for  sale.     The 
consignees  kept  the  wool  until  February,  1873,  when  they  bar- 
..lined  for  the  sale  of  the  lot.     It  was  then  examined  and  foiind 
To  be  in  bad  condition  and  the  purchaser  took  only  twenty-five 
hales  at  twenty-two  and   a  half   cents   per   pound.     The   re- 


6oS       MODKS  OF   OHTAIXINO  TITLE  TO  PERSONAL  I'KOrEIlTV. 

maimlcr  was  sold  in  March.  iS;;^,  at  from  seven  to  seventeen 
cents  jier  pound.  Tlic  consij^nces  did  not  inform  the  plaintiff 
of  the  bad  condition  of  the  wool  until  June,  iS;3.  The  plain- 
tiff then  requested  the  defendant  to  settle  the  damages  b  .t  he 
deciinL'd.  This  action  was  coniincnced  on  the  fifteenth  day  of 
December,  1S73.  On  the  trial  the  plaintiff  was  a  witness  on 
his  own  behalf  and  was  asked  by  his  counsel  why  he  had  so 
long  delayed  commencing  the  action.  The  court,  on  the  objec- 
tion of  the  defendant,  refused  to  allow  him  to  answer.  Lee. 
a  San  Francisco  wool-buyer,  and  Christy,  the  consignee,  had 
given  their  depositions  which  were  afterward  used  by  the 
plaintiff  in  making  out  his  case.  The  defendant  had  judgment 
and  the  plaintiff  appealed. 

The  other  facts  are  stated  in  the  opinion. 


BY  THE  COl  IIT. 

1.  It  is  apparent  that  defendant  made  no  express  warranty 
as  to  the  quality  or  condition  of  the  wool  in  question.  The 
conversation  had  between  the  defendant  and  the  plaintiff's 
agent,  O'Connell,  did  not  amount  to  a  warranty.  O'Connell 
had  dealt  in  wool  in  the  county  of  San  Bernardino  for  a  number 
of  years.  He  knew  the  defendant's  sheep  and  the  range  on 
which  they  ran.  lie  evidently  had  an  opinion  of  his  own 
founded  upon  his  personal  knowledge  of  the  defendant's  busi- 
ness as  to  the  quality  of  defendant's  wool,  and  he  stated  at  the 
tri.il  that  the  defendant's  wool  "was  supposed  to  be  as  good  as 
any  in  the  county."  There  is  nothing  in  the  circumstance 
that  the  defendant  expressed  a  somewhat  favorable  opinion  of 
his  wool,  that  he  indulged  an  opinion,  that,  while  Mr.  Conn's 
wool  might  be  a  little  finer  than  his  own,  his  was  fully  as 
profitable  as  Conn's  for  manufacturing  purposes.  This  was 
mere  praise  of  his  own  property — the  simplex  commendatio 
which  is  allowable  in  making  a  trade,  and  is  not  held  by  the 
rule  of  the  common  law  to  amount  to  a  warranty. 

2.  Nor  do  we  think  that  the  court  below  erred  in  holding 
that  under  the  circumstances  attending  the  sale  there  was  no 
implied  warranty  of  the  quality  or  condition  of  the  wool. 
Some  of  these  circumstances  have  been  adverted  to  already. 
The  defendant,  when  the  contract  of  sale  was  in  progress, 
invited  O'Connell  to  go    and   inspect  the   sheep;   he  declined; 


tOrEUTV. 

to  seventeen 
the  plaintiff 
The  phiin- 
laf^es  l)-,t  he 
teentl)  day  of 
a  witness  on 
ly  he  had  so 
on  the  ohjec- 
iswer.  Lee. 
•nsifjnce,  had 
used  by  the 
ad  judgment 


•ess  warranty 
estion.  The 
le  plaintiff's 
O'Connell 
foi-  a  number 
the  range  on 

of  his  own 
ndant's  busi- 

stated  at  the 
36  as  good  as 
circumstance 
le  opinion  of 
2  Mr.  Conn's 
was  fully  as 
>.  This  was 
commendatio 
:  held  by  the 

d  in  holding 
there  was  no 
of  the  wool. 
i  to  already, 
in  progress, 
he  declined ; 


MCCORMICK    V.  KEI.I.Y. 


609 


said  he  knew  something  of  them;  said  "he  would  make  the 
bargain  anyhow,  without  seeing  them."  Again,  wlun  the 
wool  was  subsec,uently  delivered  the  plaintiff  had  an  oppor- 
tunity  to  inspect  it,  but  did  not  avail  himself  of  it.  It  was 
delivered  at  the  plaintiff's  store  in  sacks.  The  plaintiff  might 
liave  esamined  the  wool  then.  That  it  might  have  been  incon- 
venient for  him  to  do  so  is  unimportant.  Had  he  done  so  the 
inferior  quality  of  the  article  would  have  appeared.  Under 
such  circumstances  no  artifice  having  been  resorted  to  by  the 
defendant  to  prevent  the  examination,  the  maxim  caveat  emptor 

applies. 

3.  There  is  nothing  in  the  supposed  errors  of  law  requiring 
particular  notice.  AH  of  them,  save  one,  seem  to  have  been 
almndoned  by  the  appellant's  counsel.  That  onf,  concerns  the 
action  of  the  court  in  refusing  to  permit  the  plaintiff  to  explain 
why  he  had  so  long  delaved  the  bringing  of  the  action.  But 
,s  it  is  conceded  by  the  counsel  that  the  testimony  of  Lee  and 
Christy    furnishes   the  desired   explanation    of   the   delay,  the 

ruling  becomes  unimportant. 

Judgment  and  order  affirmed. 

CovsuLT-Slmar  v.  Canaday,  S3  N-  Y.  398,  I3  Am.  Rep.  523;  EUis 
V  \ndrews,  s6  N.  Y.  83,  i.S  Am.  Rep.  379!  »aker  v.  Henderson,  24  Wis. 
Son;  Carondelet  Iron  WorHs  v.  Moore,  7S  HI.  65;  Bartlett  v.  lloppock, 
M  N   Y.  118.  88  Am.  Dec.  4'^;    Poland  v.  Brownell,  131  Mass.  141. 


§  102.— Same— Patent  defects. 

McCORMICK  V.  KELLY. 

[28  Minn.  135.] 

Supreme  Court  of  Minnesota,  188/. 

Dickinson,  J.— This  action  was  brought  to  recover  the 
imount  of  a  promissory  note  made  by  the  defendant  to  the 
plaintiffs,  for  a  part  of  the  purchase  price  of  a  harvester  pur- 
chased by  the  former  from  the  latter.  The  making  of  the  note 
is  not  in  issue ;  the  only  defense  asserted  being  in  the  nature  of 
.  counterclaim  for  damages  from  an  alleged  breach  of  warranty, 
on  the  part  of  the  plaintiffs,  in  respect  to  the  harvester. 

39 


(;,o     Moi.r.s  OK  ourAiNiNc;  Tin.i.  to  pkusonal  ruoi'Kiirv. 

Hy  his   answer  the  .Icfc.ul.nt    avers  that  he  fust  took   the 
machine  on  trial,  a.ul  tliat,  upon  trial,  it  proved  to  be  unsal.sf.c 
torv   an.l   uonld   not   do  -ond   work,  and  that  he   not.t.ed  the 
plaintiffs  to  take  the  machine  away,   whereupon  the  plant.lfs 
promised  and  agreed  with  the  defendant  to  put  the  niaclnne   ni 
.rood  order  and   to  furnish  certain    parts  of  the  niaclune  new, 
and  warranted  the  machine  to  he  well  made,  of  good  mater.al, 
durable,  and  not   liable  to  break  or  get  out   of  order;  that  it 
^vould  cut  and  elevate  grain  as   well  as  any  other  machme    and 
was  in  all  respects  a  f.rst-class  machine,  and  capable  of  doing 
first-class  and  satisfactory  work  as  a  harvesting  machine;  rely- 
in"  upon  .vhich  promises,  agreements,  and  warranties,  detendant 
pvuchased    the    machine,    giving    the    note   in    question.      1  he 
answer  further  alleges  that   the    plaintiffs   refused    to   put  the 
machine  in  good  order,  or  to  furnish  new  parts  for  the  machine, 
and  sets  forth  a  breach  of  the  terms  of  the  warranty. 

J3v  a  reply   the  plaintiffs  put  in  issue  the  making  of   a  war- 
rantv,'  as   well    the    agreement  to   furnish   new   parts  for   the 
m-iciiine.     The  evidence  on  the  part  of   the  defendant  tended 
to'prove  that  he  got  the  machine  for  trial  before  the  commence- 
ment  of  the  harvest  ot  .S7S;  that  it  did  not  work  well,  although 
he  used  it  to  cut  about   seventy   acres  of   grain ;   that  he  o  ten 
made  complaint  to  the  agents  of  the  plaintiffs,  who  urged  h.m 
to  keep  the  machine  and  do  the  best  he  could  with  it;  and  that 
after  harvest  the  agent  of  plaintiffs  represented  that  it  was  as 
cood  a  machine  as  there  was  in  the  market,  and  he  would  make 
it  so-  that.it  was  all  right,  and  would  do  as  good  work  as  any 
machine  in  the  market,  and  it  should  be  f^xed  up  in  first-class 
order,  with  the  new  parts  referred  to  in  the  answer;  that  the 
defendant  purchased  the  machine  then,  and  gave  the  note    rely- 
ina,  as  he  testifies,  upon  the  representations  made.     The  ev.- 
dJIice  tends  to  show  that  at  this  time  the  defendant  knew  the 
defects  in  the  machine  of  which  he  now  complains. 

At  the  request  of  the  defendant  the  court  instructed  the  ]ury 
as  follows:  "If  the  jury  find,  from  the  evidence,  that  the 
plaintiffs  expressly  warranted  the  machine  for  which  the  note 
n  suit  was  -iver,  and  that  the  defendant  was  induced  by  such 
warranty  to"  execute  and  deliver  said  note,  the  plaintiffs  are 
liable  for  all  damages  which  the  defendant  has  sustained  by 
reason  of  the  breach  of  such  warranty,   and  this  liability  is  not 


tdl'KaTV. 

irst  took  the 
DC  unsatisf-.ic- 
!   notified  the 
the  pi !i"n tiffs 
c  niiicliiiif   ill 
iiiiLhinc  new, 
ood  material, 
Drdcr;  that  it 
machine,  and 
able  of  doinj^ 
nachine;  rely- 
ies,  defendant 
Licstion.     The 
h1    to   put  the 
r  the  machine, 
nty. 

inpj  of   a  war- 
parts  for   the 
cndant  tended 
;hc  commence- 
well,  although 
that  he  often 
/ho  urged  him 
ith  it ;  and  that 
that  it  was  as 
he  would  make 
d  work  as  any 
ip  in  first-class 
swer;  that  the 
I  the  note,  rely- 
ade.     The  evi- 
dant  knew  the 
ns. 

tructed  the  jury 
dence,  that  the 
which  the  note 
iduced  by  such 
e  plaintiffs  are 
IS  sustained  by 
;  liability  is  not 


MCCOHMltK    V.   KIOI.I.V. 


r.ii 


affected  bv  the  fact  that  the  defendant  tried  said  machine  before 
the  making  of  said  warranty."  To  this  the  plaintiffs  excepted. 
At  the  request  of  the  plaintiffs  the  court  instructed  the  jury 
as  follows:  "I  charge  yen  that  where  a  general  warranty  is 
liven  on  the  sale  of  a  machine,  defects  that  were  apparent  at  the 
fime  of  the  making  of  the  bargain,  and  were  fully  known  to  the 
purchaser,  can  not  be  relied  upon  as  a  defense  to  a  note  given 
tor  such  machine,  when  the  purchaser  has  such  knowledge  at 
(he  time  of  giving  the  same.  (2)  If  you  find  that  the  machine 
was  taken  on  trial  under  a  contract  to  purchase,  and  that,  after 
having  fully  tried  it.  the  defendant  gave  his  note  therefor,  he 
can  not  offset  against  any  such  note  damages  arising  from  any 
alleged  breach  of  warranty  against  defects  known  to  the  defend- 
ant at  the  time  of  settlement  find  giving  of  the  note." 

The  court  further  instructed   the  jury  in  the   following  lan- 
guage :      "A  vendor  may  warrant  against  a  defect  that  is  patent 
and  obvious.     *     *     •     You  sell  me  a  horse,  and  you  warrant 
that  horse  to  have  four  legs,  and  he  has  only  three.     I  will  take 
your  word  for  it."     The  court  then  read  ni  the  hearing  of  the 
jury  the   following  from  Addison   on   Contracts:      "When    a 
general  warranty  is  given  on  a  sale,  defects  which  were  appar- 
ent at  the  time  of  the  making  of  the  bargain,  and  weie  known 
to  the  purchaser,   can  not  be  relied  on  as  a  ground  of  action. 
If  one  sells  purple  to  another,  and  saith  to  hiin,  'This  is  scar- 
let,' the  warranty  is  to  no  purpose,  for  that  the  oMior  may  per- 
ceive this ;   and  this  gives  no  cause  of  action  to  him.     To  vvar- 
rant  a  thing  that  may  be  perceived  at  sight  is  not  good."     The 
court  then  said  to  the  jury:      "Gentlemen,  that  is  not  the  law 

of  this  state." 

The  court  erred  in  these  instructions  to  the  jury.  It  has 
always  been  held  that  a  general  warranty  should  not  be  con- 
sidered  as  applying  to  or  giving  a  cause  of  action  for  defects 
known  to  the  parties  at  the  time  of  making  the  warranty,  and 
both  the  weight  of  authority  and  reason  authorize  this  proposi- 
tion, viz.,  that  for  representations  in  the  terms  or  form  of  a 
^^  arranty  of  personal  property,  no  action  will  lie  on  account  of 
defects  actuallv  known  and  understood  by  the  purchaser  at  the 
time  of  the  bargain.  Marjeston  v.  Wright,  7  Bing.  603 ;  Dyer 
V  Hargrave,  10  Ves.  Jr.  506;  Schuyler  v.  Russ,  2  Caines,  202  ; 
Kcnner   v.    Harding,    85    111.    264;   Williams   v.    Ingram,    21 


rui     MoDF.s  or-  or.TAiMNc;  TiTi.ic  TO  iM:ii.so\.\r.  ntoi-icurv. 

Texas,  ,^on;  Marshall  v.  Drawhorii,  27  Ca.  27V.  Siicwaltcr  v. 
Foi.l.  :^|  Miss.  117;  Hrown  v.  niu'dow,  lo  Allen.  2\i;  Story 
on  Cnnt.,  sec.  S,^o;  Menjamin  on  Sales  [3  Ed.],  ^m;  Chitty 
on  Cont.  [II  Am.  i:<I.],  r..}4.  A  warranty,  f..r  tlic  bread, 
of  the  conditions  of  which  nn  action  <'.v  contrc7rtii  for  damaf,'es 
can  he  niaintained,  must  l>e  a  le},'al  contract,  and  not  a  mere 
naked  a«rieemcnt.  It  must  he  a  representation  of  something'  as 
n  fact,  i^.on  which  the  purchaser  relics,  and  by  which  he  is 
induced,  to  some  extent,  to  make  the  purchase,  or  is  inlluenced 
in  respect  to  the  price  or  consideration.  Oneida  Manuf's 
Society  V.  Lawrence.  4  Cow.  440;  Lindsey  v.  Lindscy,  31 
Miss.  433;  niythe  V.  Speake.  23  Texas.  .\H)\  Adams  v.  John- 
son, 15  111.  345;  Ender  V.  Scott,  11  Id.  35;  Hawkins  v.  Merry. 
10  Id.  3^.:  2  Add.  on  Cont.  [Moifjan's  Ed.],  sec.  626.  In  the 
nature  of  things  one  can  not  rely  upon  the  truth  of  that  which 
he  knows  to  be  untrue;  and  to  a  purchaser  fully  knowing  the 
facts  in  respect  to  the  property,  misrepresentation  can  not  have 
been  an  inducement  or  consideration  to  the  making  of  the  pur- 
chase, and  hence  could  have  been  no  part  of  the  contract. 

It  has  often  been  said  that  a  general  warranty  may  cover 
patent  defects,  and  it  has  led  to  some  misapprehension  of  the 
law.  The  proposition  is  strictly  true,  but,  as  was  said  by  the 
court  in  Marshall  v.  Drawhorn,  supra,  "it  is  confined  to  those 
cases  of  doubt  and  difficulty  where  the  purchaser  relics  on  his 
warranty,  and  not  on  his  own  judgment."  It  has  no  applica- 
tion to  the  case  of  a  purchaser  who  knows  the  defects  in  the 
property  and  the  untruthfulness  of  the  vendor's  representations. 
We  do  not,  however,  mean  to  say  there  may  not  be  a  warranty 
against  the   future   consctiuenccs   or  results   from  even  known 

defects. 

The  fact  that  a  portion  of  the  charge  given  at  the  request  of 
the  plaintiffs  stated  correctly  the  legal  principle  under  consider- 
ation, can  not  affect  the  result.  In  fact,  that  the  instructions 
to  the  iury  were  thus  inconsistent,  and  calculated  to  mislead  or 
confuse,  rather  than  inform  and  guide  the  jury,  is,  in  itself,  a 
suflicient  reason  why  the  verdict  should  not  stand,  Vanslyck 
V.  Mills,  34  Iowa,  375  ;  C,  13.  &  Q.  R.  Co.   v.  Payne,  49  IH. 

499- 

For    the    reasons    already    indicated    a    new    trial     mr 

awarded,  and  it  is  unnecessary  to  consider  whether  the  \ 


UOI'KIII  Y. 

Shewaltfr  v. 
u,  2-\2  ;  Story 
,  ^oz]  Cliitty 
for  the  brcndi 
'  for  (hiiiKi^jfs 
nd  not  a  iiifri' 
F  sometliiiif;  as 
ly  which  he  is 
r  is  inducnced 
cida  Maiuif's 
'.  Lindscy,  3| 
dams  V.  John- 
i<ins  V.  Merry, 
;.  626.      In  the 

of  that  wiiich 
Y  knowiiifj  the 
11  can  not  have 
ing  of  the  pur- 
contract, 
ity  may  cover 
hension  of  the 
i-as  said  by  the 
iifined  to  those 
or  relies  on  his 
las  no  applica- 
defects  in  the 
epresentations. 
:  be  a  warranty 
im  even  known 

:  the  request  of 
;inder  consider- 
the  in'^U•uctious 
d  to  mislead  or 
,  is,  in  itself,  a 
\nd,  Vanslyck 
.  Payne,  49  III. 

trial     mi- 
her  the  ^ 


HAHNAIID    V.    Kl.l.I.tXKi 


^'■.^ 


is  supported  by  the  evidence    presented    in   this  case ;   nor  .s  .t 
.H.as 'n  V  to  consider  s..nu-  other  aliened  errors,   .nyolvmK  "o 
,,..„,.,fnl    <,uestions   of    hnv,   and    which   are  not  likely  to  recur 
^,,,.„    ,„other    trial.      Anticipating.,    ho^vever,    that    upon      he 
retrial,  us  in  the  former  ..ne,  the  .luest.on   may    a..se  as  to  t he 
authority  which  an  a^ent  en.p..wered  to  sell  machuu-ry  of   the 
kind  in  .piestion  may  be  presumed  to  possess  in  respect  to  the 
warranting  of   the   property,   in  the  absence,  of   any   proof    of 
express   authoritv.  we  will  l)ass  upon  the   cjuestion  as  .t  .s  pre- 
sented by  the  facts  in  this  case.      For  the  purposes  of  th.s  case 
it  is  sutr.cient  to  say  thai  au  a^a-nt,  engaKcd  for  his  prnu.pal  m 
the  business  of  selliuf,'  personal   property,    is  presumed   to  be 
av.thori/ed  to  sell  with  warranty.      It  may  be,   however,  that  it 
the  propertv  be  of  a  kind  not  usually  sold  with  warranty,  no 
such   presumption   will    be    exercised.      Nelson    v.   Cow.nj^,   6 
Hill,  536;   Smith  V.  Tracy,  36  N-  V.  79=  Schuchard  v.  Aliens, 
r  WalL  3S9;  Upton  v.  Suffolk  County   .Mills,    .j    Csh.   5^S6; 
Hoothby  V.  Scales,  27  Wi-  626;   Ahern   v.  Goodspeed,  72  N. 
V    ,08;   Murray  v.  Hrooks,  4.   Iowa,  45-     I"  '•'-'  '^"«^  ^'^  I''') 
an     a-ent    engaj^cd    in    sc\\\n^    harvesters,    without    proof    of 
express   authority    to    warrant,    the    court    will    presume    such 

^°"  ^*  Order  reversed,  and  a  new  trial  awarded. 

I"  1  »r  V   Pollnrii    2  Head.  '»I4;  Leavitt  v.  Fletcher,  60  N. 
Consult— I'lsher  v.  I  onara,  2  iieau,  ji^,  „.  ,„    ^  ii,,n,„h 

H  !«•  Bennett  V.  JU.chan,  76  N- Y.  386;  Long  v.  H.cks,  2  11  m  .h. 
365!  Drew  V.  KlUson,  r.  Vt.  409;  Thompson  v.  Botts,  8  Mo.  710;  labor 
V.  Peters,  74  Ala.  90.  49  Am.  Rep.  804. 


§103.    Warranty  of  quality-Implied  warranty-Rule  of 
caveat  emptor. 

BARNARD  v.  KELLOQG. 

[10  Wall.  383-] 

Supreme  Court  of  the  United  States,  1870. 
^-     to  tae  circuit    court  for  the  district  of   Connecticut, 

the  case  being  this:  ,    . 

In  th'     summer  of   1S64.  Barnard,  a  commission  merchant 
residin.      ^  Boston,  Massachusetts,  placed  a  lot  of  foreign  wool 


■1 


6  14       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY, 

received  from  a  shipper  in  Buenos  Ayres,  and  on  which  he  had 
made  advances,  in  the  hands  of  Bond  &  Company,  wool-brokeis 
in  Boston,  to  sell,  with  instructions  not  to  sell  unless  the  pur- 
chaser   came   to  Boston  and  examined    tlie  wool  for   himself. 
These  brokers  sent  to  E.  N.  Kellogg  &  Company,  merchants  and 
dealers    in    wool    in    Hartford,    Connecticut,   at   their  request, 
samples  of  the  different  lots   of  wool,  and   communicated   the 
prices  at  which  each  lot  could  be  obtained.    Kello<.:g  &'  Company, 
in  repb-,  offered   to  take   the  wool,  all    round,  at   fifty  cents  a 
pound,  if  equal  to  the  samples  furnished  ;  and  Bond  &  Company, 
for  their  principal,  on  Saturday,  the  sixth  day  of  August,  by 
letter  and    telegram   accepted  this   offer,   provided  Kellogg  & 
Company  examined  the  wool  on  the  succeeding  Moncay,  and 
reported    on    that   day    whether    or    not    they    would    take    it. 
Kellogg  &  Company  acceded  to  this  condition,  and  the  senior 
member  of  the  firm  repaired  to  Boston  on  the  day  named,  and 
examined  four  bales  in  the  broker's  office  as  fully  as  he  desired, 
and  was  offered  an  opportunity  to  exainine  all  the  bales,  and 
have  them  opened  for  his  inspection.      This  he  declined  to  do. 
and   coiicluded  the  purchase    on  the  joint   account  of  all   the 
plaintiffs.     Some  months  after  this,  on  t>pening  the  bales,   it 
was  ascertained  that  a  portion  of  them  were  fa.ocly  and  deceit- 
fully packed,  by  placing  in  the  interior  rotten    and   damaged 
wool  and  tags,  which  were   concealed  l)y  an  outer   covering  of 
fleeces  in   their  ordinary  state.      This  condition  of  things  had 
been  unknown  to  Barnard,  who  had  acted  in  good  faith.     It 
wiis,    however,  communicated    to   hinx,    and  he   was   asked  to 
indemnify  the  purchaser  against  the  loss  he  sustained  in  conse- 
quence  of   ii.     This    he  declined    to    do,  and  the   purchaser 
brought  this  suit.     The  declaration  counted — 

J^irst.     Upon  a  sale  by  sample. 

Second.  Upon  a  promise,  expres  "r  implied,  that  the  bales 
should  not  be  falsely  packed. 

Third.  Upon  a  promise,  express  or  implied,  that  the  wool 
inside  of  the  bales  should  not  differ  from  the  samples  by  reason 
of  false  packing. 

The  court  below,  trying  the  cause  without  the  intervention 
of  a  jury,  held  that  there  was  no  express  warranty  that  the 
bales  not  examined  should  correspond  to  those  exl  ibited  at  the 
broker's   store,  and   that   the    law,   under   the    circumstances, 


.,„,^*- 


OXAL  PHOITilirY, 

and  on  which  he  had 
)mpany,  wool-brokers 
;o  sell  unless  the  pur- 
lie  wool  for   himsell. 
iipaiiy,  mtrchanls  and 
;ut,   at   their  request, 
id   communicated   the 
Kello<.:g&'  Company, 
ound,  at   fifty  cents  a 
nd  Bond  &  Company, 
th  day  of  August,  by 
provided  Kellogg  & 
ceeding  Mono  ay,  and 
they    would    take    it. 
;lition,  and  the  senior 
1  the  day  named,  and 
as  fully  as  he  desired, 
ine  all  the  bales,  and 
his  he  declined  to  do, 
n   account  of  all   the 
opening  the  bales,    it 
2re   fa.ociy  and  deceit- 
rotten    and   damaged 
an  outer   covering  of 
ndition  of  things  had 
ted  in  good  faith.     It 
and  he   was   asked  to 
he  sustained  in  conse- 
o,  and  the   purchaser 
ted— 

implied,  that  the  bales 

implied,  that  the  wool 
the  samples  by  reason 

ithout  the  intervention 

ess    warranty  that  the 

those  exl  ibited  at  the 

er   the    circumstances, 


nAUNAKP    V.   KELLOGG. 


615 


could  not  imply  any.  But  the  court  found,  as  matters  of  fact, 
tiiat  the  examination  of  the  interior  of  the  bulk  of  bales  of 
wool,  generally  put  up  like  these,  is  not  customary  in  the  trade ; 
and,  though  possible,  would  be  very  inconvenient,  attended 
with  great  labor  and  delay,  and  for  these  reasons  was  impracti- 
cable; and  that  by  the  custom  of  merchants  and  dealers  in 
foreign  wool  in  bales  in  Boston  and  New  York,  the  principal 
inark°ets  of  this  country  where  such  wool  is  sold,  there  is  an 
implied  warranty  of  the  seller  to  the  purchaser  that  the  same 
is  not  falsely  or  deceitfully  packed;  and  the  court  held  as  a 
matter  of  law  that  the  custom  was  valid  and  binding  on  the 
parties  to  this  contract,  and  gave  judgment  for  the  purchaser. 
This  writ  of  error  was  taken  to  test  the  correctness  of  this 
ruling. 

Mr.  Justice  Davis. — No  principle  of  the  common  law  has  been 
better  established  or  more  often  atfirmed,  both  in  this  country  and 
in  England,  than  that   in   sales  of  personal  property,   in    the 
alisenc"e  of  express  warranty,  where  the  buyer  has  an  opportun- 
ity to  inspect  the  commodity,  and  the  seller  is  guilty  of  no  fraud, 
and  is  neither  the  manufacturer  nor  grower  of  the  article  he 
.selbi,    the    maxim    of    caveat    emptor    applies.      Such    a    rule, 
requiring  the  purchaser  10  take    care  of  his   own   interests,  has 
been  found  best  adapted  to  the  wants   of  trade   in  the  business 
transactions  of  life.     And   there  is  no  hardship  in  it;    because, 
if  the  purchaser  distrusts   his  judgment,  he   can    require  of  the 
seller  a  warranty  that  the  quantity  or  condition  of  the  goods  he 
desires  to  buy  corresponds  with  the  sample  exhibited.     If  he  is 
satisfied  without  a  warranty,  and  can  inspect  and  declines  to  do 
it,  he  takes  upon  himself  the  risk   that  the   article  is  merchant- 
able.    And  he  can  not  relieve  himself  and  charge  the  seller  on 
the   ground,    that   the    exi-mination    will   occupy    time,  and    is 
attended  with  labor  and  inconvenience.  •  If  it  1^  practicable,  no 
matter  how  inconvenient,  the    rule    applies.     O  e  of  the  main 
reasons  whv  the   rule    does   not  apply   in  the    c  ,se  of  a  sale  by 
sample   is  "because   there    is     .0   opportunity    for   a   personal 
examination  of  the  bulk  of  the  commodity  which  the  sample  is 
shown   to   represent.     Of    such   universal    acceptance    is    the 
doctrine  of  caveat  emptor  in  this  country  that  the  courts  of  all 
the  states  in  the  Union  where  the   common  law  preyails,  with 
one  exception  (South  Carolina),  sanction  it. 


6l6       M.)nHS  OK  OniAINTNG  TlTLi:  TO  PERSONAL  PROPERTY. 

i^nnlyins  this  acknowledged  rule  of  law  to   this   case,  it  is 
easy  to  settle  the  rights  of  the  parties  and  to  interpret  the  con- 
tract which  they  made.     That  the  wool  was  not  sold  by  sample, 
clearly  appears.     And  it  is  equally  clear  that  both  sides  r.Kler- 
stood  that  the  buyer,  if  he   bought,  was  to  be  his  ovyn  judge  ot 
the  quality  of   the    article    he    purcuased.     Barnard    expressly 
stipulated:  as  a  condition  of  sale,  that  Kellogg  shou  d  exammo 
the  wool,   and    he    did    examine    it    for    himself.     If    Kellogg 
intended  to  rely  on  the  samples  as  a  basis  of  purchase,  why  did 
ho  ^o  to  Boston  and  inspect  the  bales  at   all,  afler   notice  that 
such  inspection  was  necessary  beiore  the   sale  could   be  com- 
pleted'     His  conduct  is  wholly  inconsistent  with  the  theory  ol 
a  sale   by  sample.     If   he  wanted    to   secure   himself    against 
possible  loss,  he   should   either  have   required  a  warranty  or 
taken  the  trouble  of  inspecting  fully  all  the  bales.     Not  doing 
this,  he  can  not  turn  round   and   charge    the  seller   with    the 
consequences  of  his  own  negligence.     Barnard  acted  in  good 
faith,  and  did  not  know,  or  have   reason   to  l^elieve,  th.it  the 
wool  was  falsely  packed.     The  sale  on  his  part  was  intended 
to  be  upon  the  usual   examination  of  the  article,  and  the   pro- 
ceeding  by  Kellogg  shows  that  he  so  understood  it,  and  it  is 
hard  to  see  what  ground  of  complaint   even   he   has   against 
Barnard.     It  will  not  do  to  say  that   it  was    inconvenient  to 
examine   all   the  bales,  because,   if   inconvenient,    it  was    still 
practicable  ;  and  that  is  all,  as  we  have  seen,  that  the  law  requires. 
The  case  of  Salisbury  v.  Stainer,  19  Wend.  15S,  is  similar  m  its 
facts  to  this  case,  and  the  court  applied  to  it  the  rule  of  caveat 
emptor.     There  bales  of  hemp   were    sold,  which   turned  out 
to  be    falsely    packed.     The   purchaser   wished    to    treat   the 
sale    as  a  sale   by  sample,  but   the   court  said   to  h.m:   "You 
were  told  to  examine  for  yourself,  and  having  opened  one  bale, 
and  at  liberty  to  open  all,  and  omitting  to   do  it,  you   can  not 
be  permitted  to  allege   th.nt  the   sale  was   a  sale  by   sample, 
nor  to   recover  damages   as  on  an  implied  warranty.        It   is, 
therefore,  clear,  by  the   general   principles  of  law   adopted  m 
the  interests  of  trade   and  commerce,  that  the    seller   in    this 
instance  was  not  answerable  over  for  any  latent  defects  m  the 

bales  of  wool. 

But  the  learned  court  below  having  found  that  by  the  custom 
of  dealers  in  wool  in  New  York  and  Boston  there  is  a  warranty 


I 


OPERTY. 

is  case,  it  is 
pret  the  cou- 
ld by  sample, 
sides  ridei- 
ovvn  judge  of 
rd  expressly 
3uld  examine 

If  Kellog-; 
lase,  why  did 
;r  notice  that 
)uld  be  com- 
the  theory  of 
nself    against 

warranty  or 
I,  Not  doing 
Her  with  the 
icted  in  good 
ieve,  that  the 
was  intended 
and  the  pro- 
\  it,  and  it  is 
e  has  against 
iconvenient  to 
t,  it  was  still 
e  law  requires, 
is  similar  in  its 
rule  of  caveat 
ich   turned  out 

to  treat  the 
to  him:  "You 
ened  one  bale, 
t,  you  can  not 
le  by  sample, 
ranty."  It  is, 
aw   adopted  in 

seller   in    this 
:  defects  in  the 

t  by  the  custom 
re  is  a  warranty 


BAUNAKD    V.   KELLOGG. 


617 


bv  the  seller,  implied  from  the  fact  of  sale,  that  the  wool  is  not 
filselv  packed,  and  having  held  Barnard  bound  by  it.  the  in- 
,,„irv"ariscs  whether  such  a  custom  can  be  admitted  to  control 
the  general  rules  of  law  in  relation  to  the  sale  of  personal  prop- 

"iVis  to  be  regretted  that  the  decisions  rt  the  courts  defining 
what  local  usages  may  or  may  not  do  have  not  been  uniform. 
In  some  judicial  tribunals  there  has  been  a  disposition  to  nar- 
row the  limits  of  this  species  of  evidence,   in  others  to  extend 
them;  and  on   this   account,  mainly,    the  conflict   of  decision 
uiscs.     But  if  it  is  hard  to  reconcile  all  the  cases,   it  may  be 
s  ,fcly  said  thev  do  not  differ  so  much  in  principle  as  in  the  ap- 
plication of  th^  rules  of  law.     The  proper  oflice  of  a  custom  or 
usi-e  in  trade  is  to  ascertain  and  explain  the  meaning  and  in- 
tention of  the  parties  to  a  contract,  whether  written  or  in  parol, 
which  could  not  be  done  without  the  aid  of  this  intrinsic  evi- 
<lence.     It  does  not  go  beyond  this;  and  is  used  as  a  mode  of 
interpretation,  on  the  theory  that  the  parties  knew  of  its  exist- 
ence and  contracted  with  reference  to  it.     It  is  often  employed 
t„  explain  words  or  phrases  in  a  contract  of  doubtful  significa- 
tion, or  which  may  be  understood  in  different  senses,  according 
to  the  subject-matter  to  which  they   are  applied.      Br^  it  it  be 
inconsistent  with  the  contract,  or  expressly  or  by  necessary  im- 
plication contradicts  it,    it  can  not  be  received  in  evidence  to 
'.{fect  it.     See  notes  to  Wigglesworth   v.  Dallison,    i   Smith's 
Ld.  Cas.  498;  2  Pars,  on  Con.  535,  sec.  9;  Taylor  on  Ev.  913. 
'Usa^c,"  says  Lord  Lvndhurst,  "may  be  admissible  to  explain 
what  Is  doubtful;  it  is  never  admissible  to  contradict  what  is 
plain."     Blackett  v.   Royal   Exchange  Assur.   Co.,  2  Cromp. 
A:   J.    2^9.       And    it   is    well    settled    that   usage    can  not  be 
allowed   to  subvert  the  settled  rules  of  law.      See  note  to   i 
Smith's  Ld.  Cas.,  supra.     Whatever  tends  to  unsettle  the  law, 
;.nd  make  it  different  in  the  different  ccftnmunities  into  which 
the  state  is  divided,  leads  to  mischievous  conse  ;  lences,  embar- 
rasses trade,  and  is  against  public  policy.     If,  Uierefore,  on  a 
-iven  state  of  facts,  the  rights  and  liabilities  of  the  parties  to  a 
contract  are  fixed  by  the  general  principles  of  the  common  law, 
they  can  not  be  changed  by  any  local  custom  of  the  place  where 
ihe' contract  was  made.     In  this  case  the  common  law  did  not, 
n„  the  admitted  facts,  imply  a  warranty  of  the  good  quality  of 


W 


6lS       MUUKS  OF  OHl-A.N.NG   TITKE  TO  PERSONAL  rUOrEUTY. 

the  wool,  and  no  custom  in  the  sale  of  this  article  can  be  ad- 
n  tted  to  imply  one.  ''Acontrary  doctrine,"  says  the  court  m 
?  Lpson  V.  Ashton,  M  Johns,  sn^  "would  be  extremely 
penucious  in  its  consequences,  and  render  vague  and  unc.rtan. 
all  the  rules  of  law  on  the  sales  of  chattels. 

In  Massachusetts,  svhere  this  contract  was   made,   the  mou- 
recent  decisions  on  the  subject  are  against  the  val.duy  c>      he 
custom  set  up  in  this  case.     In  D.ckmson  v.  Gay,   ,  Allen   29. 
vv  licTvvas  a  sale  of  cases  of  satinets  made  by  samples,  there 
:ei     both  the  samples  and  the  goods,  a  latent  defect  not 
discoverable  by  inspection,  nor  until  the  goods  we-  P""t^J'  "> 
I  at  they  were  unmerchantable.     It  was  contended  that  by  cus- 
tom the  e  was,  in  such  case,  a  warranty  imphed  from  the  sale 
th"   he  goods  were  merchantable.     But  the  court,  after  a  full 
iew  of  all  the   authorities,   decided   that  the   custom    hat  a 
varrauty  was  implied,  when  by  law   it  was  not   imphed,  was 
contrary  to  the  rule  of  the   common  law   on   the   subject,  and 
ther    ore  void.     If  anything,  the  case  of  Dodd   v.   Farlow    11 
Al^n   4.6.  is  more  conclusive  on  the  point.    There,  forty  bales 
ff  go  t  skins  were  sold  by  a  broker,  who   put  n.to  the   memo- 
ndum  of  sale,  without  authority,  the  words,  ''to  be   o    me.- 
Zntable  quality  and  in  good  order."     It  was  contended  that, 
by  custom?  in  all  sales  of  such  skins  there  was  an  imphed  wai- 
■'n  rt-t  they  were  of  merchantable  quality,  and,  therefore 
the  broker  was  authorized  to  insert  the  words;   but   the   court 
lee'  he  custom  itself  invalid.     They  say:  "It  conf-avenes  the 

incple  which  has  been  sanctioned  and  adopted  by  th 
court,  upon  full  and  deliberate  consideration,  that  no  usage  w  11 
be  held  legal  or  binding  on  parties  which  not  only  relates  to 
'Ll  t  Is  a  particular  course  or  mode  of  dealing,  but  wh.ch 
Xocr.n-afts  on  a  contract  of  sale  a  stipulation  or  obhgat.on 
^hich  il  inconsistent  with  the  rule  of  the  common  law  on  the 
u  iect  "  It  is  clear,  therefore,  that  in  Massachusetts,  where 
the  wo;i  was  sold  and  the  seller  lived,  the  usage  m  question 
vvnnld  not  have  been  sanctioned. 

I    New  York  there  are  some  cases  which  would  seem  to  have 
lopted  a  contrary  view,  but  the  earlier   and  later  cases  agree 
w  di  the  Massachusetts   decisions.     The   question   in  I-nth  v 
Ba  <er    2  Johns.  327,  was  whether   a   custom  was  valid   tha 
^.    gh   must  be  p  id  on  goods  lost  by  peril  of  the  sea,  and  Chief 


act 
\vi 


lOrEllTY. 

can  be  ad- 
s  the  court  in 
be  extremely 
md  unc.;rtain 

:1c,   the  more 
ulidity  of  the 

7  Allen,  29. 
imples,  there 
nt  defect  not 
■re  printed,  so 
d  that  by  cus- 
from  the  sale 
t,  after  a  full 
custom  that  a 

implied,  was 
!   subject,  and 
,'.   Farlow,   11 
:rc,  forty  bales 
to  the   memo- 
to   be   of  mer- 
ontended  that, 
1  implied  war- 
ind,  therefore, 
but   the   court 
ontravenes  the 
dopted  by  this 
it  no  usage  will 
only  relates  to 
ling,  but  which 
I  or   obligation 
on  law  on  the 
:husetts,  where 
ige  in  question 

dd  seem  to  have 
Iter  cases  agree 
ion  in  Frith  v. 
was  valid  that 
e  sea,  and  Chief 


IIARNAUD    V.  KELLOGG. 


619 


Tustice  Kent,  in  deciding  that  the  custom  was   invalid,  says: 
-Though  usage  is  often  resorted  to  for  explanation  of  commer- 
cial instruments,  it  never  is,  or  ought  to  be,  received  to  contra- 
dict a  settled  rule  of  commercial  law."     In  Woodruff  v.  Mer- 
chants' Bank.  25  Wend.  673,  a  usage  in  the  city  of  New  \  ork 
th-it  davs  of  grace  were  not  allowed  on  a  certain  descnpt.on  of 
comme'rcial  paper  was  held   to  be   illegal.     Nelson    C    J.,  ni 
.ivin<r  the   opinion   of  that   court,    says:     -The  effect  of  the 
moof^of  usage  in  this  case,  if  sanctioned,  would  be  to  overturn 
the  whole  law  on  the  subject  of  bills  of  exchange  in  the  city  of 
New  York,"  and  adds:     "If  the  usage  prevails  there  as  tcsti- 
iled  to,  it  can  not  be  allowed  to  control  the  settled  and  acknowl- 
edged law  of  the  state  in  respect  to  this  description  of  paper. 
.\nd  in  Beirnc  v.  Dodd,  i  Seld.  95,  the  evidence  of  a   custom 
that    in  the  sale  of  blankets  in  bales,  where  there  was  no  express 
wirranty,  the  seller  impliedly  warranted  them  all   equal   to  a 
vmiple  shown,  was  held  inadmissible,  because  contrary  to  the 
s'ctfed  rule  of  law  on  the  subject  of   chattels.     But  the  latest 
authority  in  that  state  on  the  subject  is  the  case  of  Simmons  v. 
I  -,w    ^  Keyes,  219.     That  was  an  action  to  recover  the  value 
oi  a  quantity  of  gold-dust  shipped  by  Simmons  from  San  Fran- 
Cisco  to  New  York  on  Law's  line  of  steamers,  which  was  not 
delivered.     An  attempt  was  made   to   limit  the  liability  o    the 
common  carrier  beyond  the  terms  of  the  contract  in  the  bill  o 
l,aing,  by  proof  of   the   u.age  of   the  trade,  which  was  well 
known  to  the   shipper,   but  the  evidence  was   rejected.      The 
court,  in  commenting  on  the  question,  say:      "A  clear,  certain 
•uul  distinct  contract  is  not  subject  to  modification  by  proof  of 
us.-e.     Such   a  contract  disposes   of  all   customs  by  its  own 
terms,  and  by  its  terms  alone  is  the  conduct  of  the  parties  to  be 
rccrulatcd  and  their  liability  to  be  determined." 

In  Pennsylvania  this  subject  has  been  much  discussed,  and 
not  always  with  the  same  result.  At  anr  early  day  the  supreme 
court  of  the  state  allowed  evidence  of  usage  that  in  the  city  of 
Philadelphia  the  seller  of  cotton  warranted  against  latentdefects, 
though  there  were  neither  fraud  on  his  part  nor  actual  warranty. 
Snowden  v.  Warner,  3  Rawle,  loi.  Chief  Justice  Gibson  at 
the  time  dissented  from  the  doctrine  ;  and  the  same  court,  m 
later  cases,  has  disapproved  of  it  (Cox  v.  Heisley,  19  Pa.  St 
-^43-  WetheriU  v.  Neilson,  20  Pa.  St.  448),  and  now  hold  that 


620       MODI'S  OF  OIITAIMNG  THXK  TO  PEUSONAL  I'KOl'KUTV. 


a  iisn^e,  to  be  admissible,    "must  not  conflict  with  the  settled 
rides  of  law,  nor  go  to  defeat  the  essential  terms  of  tiie  con- 

tracl." 

It  would  unnecessarily  lengthen  this  opinion  to  reviev.  any 
further  the  American  authorities  on  this  subject.  It  is  enouj^li 
to  say,  as  a  general  thing,  that  they  are  in  harmony  with  the 
decisions  already  noticed.  See  the  American  notes  to  Wiggles- 
vvordi  V.  Dallison,  i  Smith's  Ld.  Cas.  49S,  where  the  cases  are 
collected  and  distinctions  noticed. 

The  necessity  for  discussing  this  rule  of  evidence  has  often 
occurred  in  the  highest  courts  of  England,  on  account  of  the 
great  extent  and  variety  of  local  usages  which  prevail  in  that 
country,  but  it  would  serve  no  useful  purpose  to  review  the 
cases.  They  are  collected  in  the  very  accurate  English  noLe  to 
Wigglesworth  v.  Dallison,  and  are  not  different  in  principle 
from  the  general  current  of  American  cases.  If  any  of  the 
cases  are  in  apparent  conflict,  it  is  not  on  account  of  any  differ- 
ence in  opinion  as  to  the  rules  of  law  which  are  applicable. 

These  rules,  says  Chief  Justice  Wilde,  in  Spartali  v.  Heneckc, 
10  C.  B.   322,   "are   well   settled,    and    the    ditliculty  that  has 
arisen  respecting  them    has    been    in    their    application    to  the 
various  circumstances  of  the  numerous  cases  in  which  the  dis- 
cussion of  them  has  been   involved."     But  this  difliculty   does 
not  exist  in   applying  these  rules  to  the  circumstances  of  this 
case.     It  is  apparent  that  the  usage  in  question  was  inconsistent 
with  the  contract  which  the   parties  chose  to  make  for  them- 
selves, and  contrary  to  the  wise  rules  of  law  governing  the  sales 
of  personal  property,     It  introduced  a  new   element  into  their 
contract,  and  added  to   it   a    warranty  which    the    law   did   not 
raise  nor  the  parties  intend    it  to   contain.     The  parties  nego- 
tiated on  the  basis  of  caveat  emptor,  and  contracted  accordingly. 
This  they  had  the  right  to  do ;    and,  by  the  terms  of  the  con- 
tract, the  law  placed  on  the  buyer  the  risk  of  the  purchase,  and 
relieved  the  seller  from   liability  for  latent  defects.     But  this 
usage  of  trade  steps  in  and  seeks  to  change  the  position  of  the 
parties,  and  to  impose  on  the  seller  -a  burden  which   the   law 
said,  on  making  his  contract,   he   should    not   carry.     By  this 
means  a  new  contract  is  made  for  the  parties,  and  their  rights 
and  liabilities  under  the    law  essentially  altered.     This,  as  we 
have  seen,  can  not  be  done.     If  the  doctrine  of  caveat  emptor 


T 


orKitTY. 

th  the  settled 
;  of  tlie  con- 

)  reviev.    any 

It  is  enough 

lony  with  tlic 

s  to  Wiggles- 

the  cases  are 

ice  has  often 
xount  of  the 
evail   in  that 
o   review  the 
iglisli  noie  to 
in  principle 
f   any  of   the 
of  any  differ- 
pplicable. 
li  V.  Benecke, 
:ulty  that  has 
ication    to  the 
khich  the  dis- 
litHculty   does 
tances  of  this 
IS  inconsistent 
il<e  for  them- 
ning  the  sales 
nent  into  their 
law   did   not 
parties  nego- 
d  accordingly. 
IS  of  the  con- 
purchase,  and 
;cts.     But  this 
osition  of  the 
thich   the   law 
arry.     By  this 
id  their  rights 
This,  as  we 
caveat  emptor 


J 


-» 


WOLCOTT    V.  MOUNT. 


621 


c.n  be  changed  by  a  special  usage  of  trade,  in  the  manner  pro- 
p„^cd  by  the  custom  of  dealers  of  wool  in  lioston.  it  is  easy  to 
L'  it  can  be  changed  in  other  particulars,  and  in  tins  way  the 
Nvluile  doctrine  frittered  away. 

It  is  proper  to  add,  in  conciu.ling  this  opinion,  that  the  con- 
duct of  the  parties  shows  clearly  that  they  did  not  know  of  this 
custom,  and  could  not,  therefore,  have  dealt  with  reference  to 

"'judgment  reversed  and  the  cause  remanded,  with  directions 
to  award  a  venire  de  novo. 

Bradley  and  Stuong,  JJ.,  dissented. 

Judgment  reversed. 

CoNSULT-IIight  V.  Bacon.  126  Mass.  10,  30  Am-  Rep.  639;  Dickso" 
v.^  rdan.  „  Ireci.  :66.  53  A--  Dec  40..;  Moses  v.  Mead  x  Den.o  378; 
„\„,.  Dec.  S76;    Hahn  v.   Doolittle,   18  Wis.    196,  86  Am    Dec.  7.^7, 

.llev  V.  Cli,Uon  Co.,  13  Ohio  St.  502,  82  Am.  Dec^4t4;  ^^^f^^'^^ 
Tnlo'r,  29  Me.  508.  50  Am.  Dec.  607;  Weimer  v.  Clement,  37  I  »•  St. 
';:,78Am.Dec.4n;  Moore  v.  McKinley,  5  Cal.  47X;  Gett,  v.  Roun- 
tiee,  2  Pinney,  379,  54  Am.  Dec.  138. 


i  104.    Exception  to  the  rule  of  caveat  emptor  -Implied 
warranty  that  goods  answer  description. 

WOLCOTT  V.  MOUNT. 

[38  N.  J.  Law,  496;  20  Am.  Rep.  425-] 

Court  of  Errors  and  Appeals  of  Neiv  Jersey,  1875- 

Br  vsLEV    C   J.— The  plaintiffs  in  error  sold  to  the  defend- 
ant in  error' certain  seed   as  and  for  "early  strap-leaf   redtop 
turnip  seed."     The  seed,  being  planted,  turned  out  to  be  of  a 
different   kind,   so  that  the   defendant  lost  his   crop.     It  vvas 
shown  in  the  case  that  the  plaintiffs  in   error  beheved,   a    the 
P,ne  of  the  sale,  that  the  seed  was  of  the  kind  which  the  defend- 
;nt  'nought  to  purchase.     The   defendant  in   error  brought  his 
.uit  before  a  justice,  on  the  ground  that  the  sale  to  him,  under 
,.ese  conditions,  comprised  a  warranty.     The  decision  was  in 
MS  favor,  and  such  judgment  was  affirmed  in  the  common  pleas, 
:  nd,  on  certiorari,  in  the  supreme  court. 


612       MO.'KS  OV  OnTA.N.N.i   T.TLK  TO  IMCRSONA..  .MlOl-Iun  V. 

TluMcfore,  the  point  before  this  court  now  is,  whether  on 
the  ;;::;  stated,  L  .o.n  ^  co.nn.on  pleas  conUl  lawt^^y  .nfer 
tl,at  the  ph.int.ffs  in  error  warranted  the  art.cle  sold  to  be  ot 
the  particular  kind  for  Nvhich  it  was  purchased. 

The  subject  of  warranty,  in  its  application  to  the   class  o. 
case    in  which  the  present  one  is  connM-ehended,   has  been  nv 
o      d  in  nn.ch  confusion.     The  authorities  are  not  cons.sten 
and  they  are  very  nun.erous.     It  has  always  ---'^--^ 
a  considerable  part  of  this  contrariety  has  a--;  f'"-  '    -^ 
apprehension  with  respect  to  what  was  deeded  n.  the  famous 
e  of  Chandler  v.  Lopus,  Cro.  Jac.  4.     The  o,.ly  quest.on  n 
that  case,  as  1  understand  it,  was   as  to  the   sulhoency   of  the 
:!;::^..en;s  m  the  declaration.     The   plaintiff's  -- ^^^^ 
upon  the  record,  is  stated  in   the   report   n.  these   -«   '^'  -^-:  ' 
.\vhereas.  the  defendant  being  a  goldsn..th     and   ha  .ng  sk 
in  Jewels  and  precious  stones,  had  a  stone  w-h.ch  he  alhrme 
Lopus  to  be  a  bezoar  stone,  and  sold   it  to  h.m  for  a  hund  ed 
po  nds;  n^n  n.cra,  it  was  not  a  be.oar  stone."      Fhe  cont.. 
Ln  in  the  court  of  error,    upon  this  record,  was  that  eno  g 
did  not  here  appear  to   charge   the  defendant,  because  .t  was 
shown  neitherMat  he  warranted  it  to  be   a  be.oar   stone,  no 
knew  it  to  be  not  such.     Instead  of  a  warranty  ^-;^;M--b 
laid  in  the  declaration,   a   mere   atlumat.on   as   to   the   knu  lot 
a  -tide  sold  was  laid,  and  it  was  this  form   of  pleadn.g  wh  ch 
was  adjudged  to   be  bad.     Now,  an    afRrmat.on    of   th.s    knu 
niav  or  mav  not  be  a  warranty,  according  to  circumstances,  and 
the"fault  of  the  pleading,  therefore,  was  that  nnstead  of  a  ^^.u- 
ranty  it  set  forth   inconclusive  evidence  of    a  warranty      1 
pleader  was  bound  to  state  the  transaction  accordmg  to  Us  lega 
e  f  et,  and  this  was  all  that  was  decided.     And  such  a  form  ot 
Statement,  at  the  present  day,  would,  I  think,  be  deemed  >1  . 

But  thil  decision  has  been  many  times  cited,  not  as  an  dlus- 
tration  of  the  rule  of  pleading,  but  as  an  example  of  the  msuf- 
ilciencv  of  the  alllrmation  specified  in  the  case  to  prove  a  con- 
act  of  warranty;  and  this,  in  my  opinion,  is  an  evuh^nt m.suse 
of  the  precedent,  which  has  been  introduct.ve  of  confus.on.     It 
tl    sL    abuse   that   resulted    in  the   judgment   m  Se.xas 
Woods,  2  Caines'  R.  48,  which  asserted  that  a  warranty  would 
not  arise  from  a  description  of  the  kind  of  the   ar,.cle   sold 
Thi    decision  was  followed  by  several  others  in  a  sn.dar  ven.; 


Ol'KllTV, 


WOI.COTT    V.    MOINT. 


623 


whether,  on 
iwfiiUy  infer 
)ld   to  be  ot 

the  class  oC 
has  heen  in- 
at  consistent, 
ed  to  nic  that 
from  a  inis- 
1  the  famous 
y  question  in 
:iency  of  the 
ise  appearing 

words,  viz. : 

having  skill 
he  atlirmed  to 
or  a  hundred 

The  conten- 
i  that  enough 
ecause  it  was 
)ar  stone,  nor 
eing  expressly 
3  the  kind  of 
leading  which 

of    this    kind 
nnstances,  and 
tead  of  a  w  ar- 
arranty.     The 
Jingtoits  legal 
such  a  form  of 
;  deemed  ill. 
lot  as  an  illus- 
le  of  the  insuf- 

0  prove  a  con- 

1  evident  misuse 
f  confusion.  It 
;nt  in  Scixas  v. 
warranty  would 
he   article   sold. 

a  similar  vein; 


'  nt  the  ground  upon  which  this  line  of  cases  rested,  after  heing 
much  criticised  and  discredited,  has  been  formally  repudiated 
Iv  the  court  of  appeals  of  New  ^'ork  in  Hawkins  v.  I'emher- 
t'.n.  51  N.  V.  lyS. 

The  tendency   of  recent  adjudications  has  been,  I  think,  to 
j)ut  this   subject  on  a   reasonaiile   footing.      Starting  from   the 
admission   that,  in   the  absence  of   fraud    and    of   a    warranty, 
tlif  rule  of  caveat  emptor   applies,  the  effort  is,  not  to  elevate 
particular  expressions  contained  in  a  given  contract  into  a  gen- 
eral rule  of  law,  but  to  regard  each  case  in  tlie  light  of  its  own 
circumstances,  and  with  respect  solely  to  the  nn.lerstanding  of 
the  parties.     Whether  the  representation  or  aifirmation  accom- 
panying a  sale  shall  be  regarded  as  a  warranty  or  as  simplex 
cowmcndutio,  is  a  question  to  be  solved   by  a  search  for  the 
intention  of  the  contracting  parties.     The  two  cases  of  Jend- 
wine  v.  Slade,  2  Espinassc,  572,  and  Power  v.  Harham,  4  A. 
&  \l.  473,  31  Eng.  Com.  Law,  115,  are  conspicuous  examples 
of  this  rule.     In  the  former  there  was  a  sale  shown  of  two  pic- 
tures,  the  catalogue  of  the   auction  describing  one   as  a  sea 
piece,  by  Claude  Lorraine,  and  the   other,  a  fair,   by  Teniers. 
This  description  was  held  by  Lord  Kcnyon  to  be  no  warranty 
that  the  pictures  were  the  genuine  works  of  the  artists  referred 
to,  but  merely  an  expression  of  the  opinion  of  the  vendor  to 
that  .effect.     In  the  other  case,    it  appeared  that,  at  a  sale  of 
four  pictures,  they  were  described  as  "four  pictures,  views  in 
Venice — Canaletto,"  and  it  was  left  to  the  jury  to  decide  whether 
the  intention  was  to  warrant  the  pictures  as  authentic,  the  court 
distins-uishine  this  case  from  the  former   one  by  the  circum- 
stance  that  Canaletto  was   comparatively  a  modern  painter,  the 
authenticity  of  whose  works  was  capable  of  being  known  as  a 
fad,  while,  with  respect  to  the  productions  of  very  old  painters, 
an  assertion  as  to  their  genuineness  was  necessarily  a  matter  of 
opinion.     In  these  instances  the  respective  aflirmations  of  the 
vendor    were  of    equivalent    import,    intrinsically    considered; 
Init  it  was  left  open,  as  a   matter  of  inference,   whether   they 
were  to  have  the  same  signification  when   used  under   variant 
circumstances.     The  question  consequently  is,  in  every  case  of 
this  kind,  whether  the  conditions  were  such  that  the  vendee  had 
the  right  to  understand,  and  did  so  understand,  that  an  allnma- 
t'on  or  representation  made  by   the   vendor  was   meant   as  a 
w  arranty. 


624      MODES  or  OBTAINING  TITI.K  TO  I'EKSOVAL  PUOI'EHTY. 

And  for  tlie  determination  of  tliis  qnestion,  Mr.  Hcnjamin. 
in  his  aiiniiral)le  treatise  on  Sales,  page  499,  says:  "A  decis- 
ive test  is  wiiether  the  vendor  assnmes  to  assert  a  fact,  of  which 
the  buyer  is  ignorant,  or  merely  states  an  opinion  or  judgment 
iil)on  a  matter  of  wiiich  the  vendor  has  no  special  knowledjje, 
and  on  which  tlie  buyer  may  l)e  expected  also  m  have  an 
opinion,  and  to  exercise  his  judj^ment.  In  the  former  case 
there  is  a  warranty;   in  the  latter,  not." 

This  criterion  is  the  product  of  the  learned  author's  study  of 
the  English  decisions,  and  it  appears  to  me  to  be  the  most 
satisfactory  one  which  can  be  adopted.  It  is  exemplified  in  a 
vast  number  of  cases,  many  of  which  are  collected  in  the  treatise 
just  referred  to,  and  in  the  voluminous  notes  upon  the  case  of 
Chandler  v.  Lopus,  i  Smith's  Lead.  Cas.  23S.  It  does  not 
seem  to  me  expedient  further  to  refer,  on  this  point,  to  the 
books,  contenting  myself  with  the  single  observation  tiiat  the 
before  cited  case  of  Hawkins  v.  Pemberton,  51  X.  Y.  19S,  is 
in  all  respects  applicable  to  the  facts  now  present. 

Resorting,  then,  to  the  principle  and  test  just  propounded,  it 
is  manifest  that  the  judgment  of  the  supreme  court  can  not  be 
disturbed.  The  court  of  common  pleas,  in  weighing  the  evi- 
dence, bad  a  right  to  infer  that  a  warranty  of  the  character  of 
the  article  sold  was  within  the  understanding  of  the  contracting 
parties.  The  seller  in  this  case  asserted,  at  the  time  of  the 
sale,  that  the  seed  was  of  the  species  which  the  vendee  was  in 
search  of.  When  he  made  this  express  assertion,  he  was  aware 
that  the  vendee  could  have  no  opinion  for  himself  on  the  sub- 
ject, for  the  case  states  that  the  seed  could  not  be  distinguished 
by  sight  or  touch.  The  vendee  also  knew  that  the  vendor 
could  not  be  stating  the  result  of  his  own  observation.  The 
facts  do  not  admit  of  the  imperative  inference  that  the  assertion 
of  the  vendor  was  mere  commendation  of  his  goods,  or  even 
that  it  was  the  utterance  of  his  view  as  an  expert.  If  the  seller 
had  stated  the  exact  truth,  he  would  have  said  that  he  had 
bought  the  seed  as  seed  of  the  specified  kind,  but  that  he  did 
not  know  whether  it  was  so  or  not.  Instead  of  doing  this,  he 
made  the  positive  assertion  in  question.  P'rom  such  an  asser- 
tion, under  the  circumstances  in  evidence,  I  think  the  court, 
although  it  was  not  bound  so  to  do,  had  the  right  to  infer  that 
there  was  a  warranty. 


IIOPKHTY. 

r.  Hcnjainln. 
:  "Adecis- 
fact,  of  wliicli 
or  jiid^tnciU 
1  kiiowledjjc'. 

0  io  liave   an 
former  case 

lor's  study  of 
be  the  most 
.•mplificd  in  a 
in  tlie  treatise 
in  the  case  of 
It  does  not 
point,  to  the 
ition  tiiat  the 
X.  Y.  lyS,  is 

iropounded,  it 
irt  can  not  be 
^hing  the  evi- 
e  character  of 
le  contracting 
e  time  of  the 
,cndce  was  in 
he  was  aware 
if  on  the  sub- 
distinguished 
it  the  vendor 
vation.  The 
t  the  assertion 
;oods,  or  even 
If  the  seller 

1  that  he  had 
It  that  he  did 
doing  this,  he 
such  an  asser- 
inlv  the  court, 
t  to  infer  that 


WOLCOTT    V.   MOUNT. 


6a5 


Tiic  second  (jucstion  raised  in  the  cause  respects  the  measure 
,,f  damages.  Tlie  rule  applied  in  the  court  below  made  the 
plaintiff  whole,  as  he  was  allowed  to  recover  the  difference 
lutwcen  the  value  of  the  crop  produced  and  the  crop  wiiich 
would  have  l)cen  produced  if  the  seed  had  been  answerable  to 
tlie  warranty.  This  embraces  profits,  and  the  contention  was, 
lluit  profits  arc  too  remote  and  uncertain  to  constitute  an 
iii'^iidient  in  the  recompense  which  the  law  gives  on  a  breach 

of  contract. 

Hut  this  argument  comprises  a  latitudinarian  and  incorrect 
statement  of  the  legal  rule.     Profits  sometimes  are  not,   in  a 
legal  point  of  view,  either  remote  or   uncertain.     Where  the 
sit'iiation  of  the  parties  is  such  that,  supposing  their  attention  to 
have  been   directed  to  the  contingency,  they   must  have  per- 
ceived,  at   the    time  of  the   making  of  the  contract,   that    its 
lireach   would   probably  result   in   the  loss  of  definite    profits, 
Midi  profits  being  of  an  ascertainable  nature,  the  compensation 
which  the  law  affords  to  the  injured  party  will  embrace  these 
profits.      The  leading  case  on  this  subject,  and  one  which  was 
approved  of  in  this  court  in  Binninger  v.  Crater,  4  Vroom,  513, 
is  that  of  lladley  v.  Baxendale,  9  Exchq.  R.  341.     The  action 
was  for  the  nonperformance  of  a  contract,  and  the  rule  is  thus 
(iciined  by  the  court:.   "We  think  the  proper  rule   in  such  a 
case  as  the  present  is  this:   where  two  parties  have  made  a  con- 
tract which  one  of  them  has  broken,  the  damages   which  the 
otlier  party  ought  to  receive  in  respect  to  such  breach  of  con- 
tract should  be  either  such  as  may  fairly  and  substantially  be 
considered   as   arising  naturally—?,  e.,  according  to  the  usual 
course  of  things — from  such  breach  of  contract  itself,  or  such 
as  may  reasonably  be  supposed  to  have  been  in  the  contempla- 
tion of  both  parties  at  the  time  they  made  the  contract,  as  the 
probable  result  of  the  breach  of  it.     Now,  if  the  special  cir- 
cumstances under  which  the  contract  was  actually  made  were 
communicated   by   the    plaintiff   to   the    defendant,    and    thus 
known  to  both  parties,  the  damages  resulting  from  the  breach 
of  such  contract,   which  they  would  reasonably  contemplate, 
would  be  the  amount  of  injury  which  would  ordinarily  follow 
ironi  a  breach  of  contract  under  these  special  circumstances  so 
known  and  communicated." 
40 


tiCi    Monns  OK  <)i!r.\iNiN<;  iiti.k  to  I'KusovAr.  imioi'f.ui'y. 

The  rule  thus  stated  li:is  hoen  nppinvi'd  of  ami  follovvcii  in  a 
numcrouK  series  of  decisions  bybotii  the  lCni,disii  and  Arneriiaii 
courts,  as  is  abunilanlly  shown  liy  Mr.  Si-d.j\vlck  in  his  vahial)le 
work  on  I)ainaj;cs,  pa^'o  7y  (sixtii  eilition). 

The  present  case  falls  clearly  witliin  the  scope  of  this  princi- 
ple. The  defendant  at  the  time  of  the  sale  was  p()ss<-sscd  of 
nil  tlie  facts — lie  knew  tlie  business  of  the  plaiiUiff,  and  tiie  use 
to  be  made  of  the  thiiiLj  sold,  lie  was  in  a  situation  to  foresee, 
with  entire  certainty,  the  loss  that  wcndd  fall  upon  tiie  plaintiff 
if  the  warranty  should  be  broken.  Nor  are  the  <,'ains  which 
have  been  lost  subject  to  any  uncertainty.  The  seed  sold  w.is 
planted  and  came  to  maturity;  the  seed  stipulated  for  would 
have  done  the  same,  only  the  value  of  the  product  would  have 
been,  to  a  definite  amount,  f,M-eater.  In  such  an  injury  there  is 
nothinfi;  speculative  or  contingent.  There  arc  a  number  of 
authorities  which  sanction  the  recovery  of  proiits  of  a  much 
more  uncertain  character  than  these:  Davis  v.  Talcot,  i  |. 
Barb.  6ii  ;  Grifllii  v.  Colver,  i6  N.  Y.  ■]Sc);  Horries  v.  Hutch- 
inson, iS  C.  n.  (X.  S.)  145,  114  I'^ng.  Com.  Law;  Mcssmoie 
V.  N.  Y.  Shot  and  Lead  Co.,  40  N.  Y.  422. 

The  judgment  should  be  alfirincd. 

See  note  to  next  case. 


§  105.    Same— And  are  merchantable  under  that  descrip- 
tion. 

HAWKINS  V.  PEMBERTON. 


[51  N.  Y.  it,S;  10  Am.  Rep.  595.] 
CoJiri  of  Appeals  of  New  7'ork,  1872. 

Appeal  by  the  defendant  from  a  judgment  of  the  superior 
court  of  the  city  of  New  York  at  general  term  entered  upon  an 
order  denying  a  motion  for  a  new  trial  and  directing  judgment 
upon  a  verdict. 

The  action  was  brought  to  recover  damages  for  an  alleged 
breach  of  a  contract  for  the  purchase  of  personal  property. 
The  defense  was  a  breach  of  warranty  as  to  the  character  of 
the  article  purchased,  also  fraud. 


lloi'KUTY 


followed  in  a 
md  ArneritMii 
II  liis  vahialilc 

if  this  piiiici- 

p()SS<!-iSO(l     of 

f,  and  tiif  use 
on  to  forest'o, 
1  tlie  plaiiUitf 
:  <^ains  wliich 
sued  soiil  w.is 
ed  for  would 
:t  would  have 
injury  tlierc  is 
a  number  of 
ts  of  a  much 
V.  Talcot,  i[ 
•ries  V.  Ilutch- 
w ;   Mcssmore 

d  be  alfirmcd. 


that  descrip- 


f  the  superior 
tered  upon  an 
ting  judgment 

:or  an  alleged 
anal  property. 
:  character  of 


HAWKINS   V.  rEMiiKinov. 


617 


On  the  sixteenth  of  January,   1867,   Murdett,  Jones  Si  Com- 

l);iiiy,  who  were  auctioneers  in  the  city  of  New  ^'orU,  sold  fortlie 
jilaintiff  twentv-three  barrels  of  what  was  called  blue  vitriol. 
The  auctioneers  at  tiie  time  of  the  sale,  the  plaintiff  being 
present,  stated  that  the  article  was  "blue  vitriol,  sound  and  in 
<4ood  order."  'J'lic  defendants,  bein^  the  hi;^'liest  bidders,  became 
tlie  purchasers,  at  ei<;lit  cents  per  pound,  relying  upon  the 
representation  of  the  auctioneer  that  it  was  "blue  vitriol,"  and 
In  licving  that  it  was  such  at  the  time  of  the  purchase.  The 
defendants  examined  some  of  it  and  it  had  the  appearance  of 
I'hie  vitriol,  being  blue.  They  took  a  sample  of  it  away  and 
the  next  morning  found  that  it  had  turned  nearly  all  white  on 
the  surface  from  exposure  to  the  air,  and  concltiding  it  was  not 
blue  vitriol  they  immediately  notilied  the  plaintiff  that  they 
would  not  take  it.  The  plaintiff  then  notilied  them  that  he 
should  sell  it  upon  their  account  and  look  to  them  for  any 
loss.  lie  accordingly  did  sell  it  at  auction  for  about  live  cents 
per  pound,  and  the  loss  was  nearly  $400,  to  recover  which  this 
action  was  brought.  It  was  subseiiueiitly  discovered  by  chcm- 
ic;il  analvsis  that  the  article  contained  only  from  seventeen  to 
twentv-five  per  cent  of  blue  vitriol,  chemically  called  sulphate 
of  copper,  and  that  the  balance  was  mostly  green  vitriol, 
chemically  called  sulphate  of  iron,  or  copperas.  It  ,vas  not 
possible  nt  the  time  of  the  sale  to  discover  by  any  examination 
which  could  then  be  made,  the  true  character  of  this  article. 
It  could  be  discovered  by  exposure  <'or  some  hours  to  the  air  or 
i)v  chemical  analysis.  This  article  had  just  been  imported 
from  Germany,  and  it  was  shown  by  a  manufacturing  chemist 
who  formerly  resided  in  Germany  that  it  was  known  there  as 
saltzburger  vitriol  and  not  as  blue  vitriol.  A  chemist  sworn  on 
ViL'half  of  the  plaintiff  testified  that  it  was  not  blue  vitriol,  nor 
white  vitriol,  but  chemically  speaking,  mixed  vitriol.  While 
sulphate  of  copper  was  worth  from  eight  to  nine  and  a  half 
cents  per  pound,  sulphate  of  iron  was  worth  only  one  and  a 
half  cents  per  pound. 

At  the  close  of  the  evidence  on  the  trial,  the  defendants' 
counsel  requested  to  go  to  the  jury  upon  the  questions  of  breach 
of  warranty  and  fraud.  The  court  refused  the  request  and 
directed  a  verdict  for  the  plaintiff  and  ordered  the  exceptions 
to  be  heard  in  the  first  instance  at  the  general  term.  A  verdict 
was  rendered  accordingly. 


62S       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

Eaul,  C— This  action  was  brought  against  the  defendants 
as  purchasers  of  an  article  called,  at  the  tin:e  of  the  sale,  blue 
vitriol,  to  recover  dam.iges  for  refusing  to  t.-.ke  and  pay  for  the 
samc'and  upon  the  trial  the  court  refused  to  cubmit  the  evi- 
dence to  the  jury  and  ordered  a  verdict  ff  the  plaintiff. 

The  defendants  failed  to  establish  tncir  defense  of  fraud  and 
upon  that  (lucstion  I  think  there  was  no  evidence  to  submit  to 
the  jury.  We  have  only,  therefore,  to  consider  whether  there 
was  evidence  tending  to  show  that  the  plaintiff  at  the  sale  war- 
ranted the  article  to  be  blue  vitriol,  sound  and  in  good  order, 
and  whether  there  was  a  breach  of  this  warranty. 

It  is  untiuestioncd  that  there  was  a  warranty  that  the  article 
w.^s  sound  and  in  good  order  and  I  am  quite  clear  that  there 
w;.s  no  breach  of  this  warranty.  It  was  good,  sound  saltzburger 
or  mixed  vitriol.  It  was  just  as  it  was  made;  not  damaged  or 
in  any  way  out  of  order.  It  was  in  its  natural,  normal  condi- 
tion, and  it   could  not  be  said  of  such  an  article  that  it  was 

unsound.  .    .   i  •,     x    • 

Did  the  plaintiff  warrant  the  article  to  be  blue  vitriol.?  It  is 
unquestioned  that  at  the  time  of  the  sale,  through  his  auc- 
tioneer, he  represented  it  to  be  blue  vitriol,  and  that  the  defend- 
ants bought  it  as  such,  relying  upon  that  representation.  To 
constitute  a  warranty  it  is  not  necessary  thai  the  word  warranty 
should  be  used.  It  is  a  general  rule  that  whatever  a  seller 
represents  at  the  time  of  r.  sale,  is  a  warranty.  Wood  v. 
Smith,  4  Car.  &  Payne,  45. 

In  Stone  v.  Denny,  4  Mete.  151,  it  is  said  that  the  courts  in 
their  later  decisions  "manifested  a  strong  disposition  to  con- 
strue liberally  in  favor  of  the  vendee,  the  language  used  by  the 
vendor  in  making  any  affirmation  as  to  his  goods  and  have 
been  disposed  to  treat  such  affirmations  ns  warranties  whenever 
the  language  would  reasonably  authorize  the  inference  that  the 
vendee  so  undei^tood  it." 

In  Oneida  Manufacturing  Society  v.  Laurence,  4  Cow.  440, 
Chief  Justice  Savage  says:  "There  is  no  particular  phraseology 
necessary  to  constitute  a  warranty.  The  assertion  or  affirma- 
tion of  a  vendor  concerning  the  article  sold  must  be  positive 
;,nd  unequivocal.  It  must  be  a  representation  which  the 
vendee  relies  on  and  which  is  understood  by  the  parties  as  an 
absolute  assertion,    and   not   the   expression  ot   an   opinion."^ 


J 


riMl 


S'AL  PROPEUTY. 

liust  the  defendants 
ire  of  the  sale,  blue 
!ke  and  pay  for  the 
to  cubmit  the  evi- 
the  plaintiff, 
iefense  of  fraud  and 
dence  to  submit  to 
isider  whether  there 
itiff  at  the  sale  war- 
ind  in  good  order, 
ranty. 

mty  that  the  article 
ite   clear  that  there 

d,  sound  saltzburger 
le ;  not  damaged  or 
tural,  normal  condi- 
i  article  that  it  was 

:  blue  vitriol?     It  is 

e,  through  his  auc- 
and  that  the  defeud- 
representation.  To 
It  the  word  warranty 
at  whatever  a  seller 
i^arranty.     Wood   v. 

id  that  the  courts  in 
r  disposirion  to  con- 
anguage  used  by  the 
his  goods  and  have 
warranties  whenever 
the  inference  that  the 

lurence,  4  Cow.  440, 
articular  phraseology 
assertion  or  affirma- 
)ld  must  be  positive 
sentation  which  the 
by  the  parties  as  an 
ion  ot   an   opinion 


HAWKINS    V.   PEMBERTON. 


629 


And  generally  where  the  representrtion  is  not  in  writing,  the 
question  of  warranty  is  to  be  submitted  to  the  jury.  Duffee  v. 
Mason,  S  Cow.  25. 

It  is  not  true  as  sometimes  stated  that  the  representation  in 
Older  to  constitute  a  warranty  must  have  been  intended  by  the 
vendor  as  well  as  understood  by  the  vendee  as  a  warranty.  If 
the  contract  be  in  writing  and  it  contains  a  clear  warranty,  the 
vendor  will  not  be  permitted  to  say  that  he  did  not  intend  what 
his  language  clearly  and  explicitly  declares:  and  so  if  it  be  by 
parol  and  the  representation  as  to  the  character  or  quality  of 
the  article  '^old  be  positive,  not  mere  matter  of  opinion  or 
judgmen,.  and  the  vendee  understands  it  as  a  warranty  and  he 
relies  upon  it,  and  is  induced  by  it,  the  vendor  is  bound  by  the 
warranty,  no  matt.r  whether  he  intended  it  to  be  a  warranty 
or  not.  He  is  responsible  for  the  language  he  uses  and  can 
not  escape  irability  by  claiming  that  he  did  not  intend  to  convey 
the  impression  which  his  language  was  calculated  to  produce 
upon  the  mind  of  the  vendee. 

Here  it  is  not  questioned  'hat  the  language  used  was  suffi- 
cient to  constitute  f  warrant)  .  .it  the  article  sold  was  sound 
and  in  good  order;  and  why  should  it  not  as  well  extend  to  the 
character  cf  the  article?  When  a  buyer  purchases  an  article 
whose  true  charav,:er  he  can  not  discover  by  any  examination 
which  it  is  practicable  for  him  to  make  at  the  time,  why  may 
lie  not  rely  upon  the  positive  representation  of  the  seller  as  to 
lis  character  as  well  as  to  its  quality  and  condition?  I  can 
discover  no  distinction  in  principle  in  the  two  kinds  of  repre- 
sentation; and  yet  it  is  claimed  in  behalf  of  the  plaintiff  that 
there  is  a  distinction,  and  certain  cases  are  cited  to  uphold  it, 
which  I  will  proceed  briefly  to  consider. 

The  first  is  the  celebrated  case  of  Chandelor  v.  Lopus,  Cro. 
Jac.  4.  That  was  a;i  action  upon  the  case;  and  the  plaintiff 
..lleged  in  his  declaration  that  the  defendant  sold  him  a  stone 
which,  he  affirmed  to  be  a  bezoar  stone,  whereas  it  was  not  a 
htzoar  stone.  The  defendant  pleaded  not  guilty  and  the  plain- 
tiff had  a  verdict.  The  case  was  taken  by  writ  of  error  to  the 
exchequer  chamber  and  it  was  there  held  that  the  declaration 
was  not  good;  "for  the  bare  affirmation  that  it  was  a  bezoar 
stone,  without  warranting  it  to  be  so,  is  no  cause  of  action." 
The  court  say:    "Every  one  in  selling  his  wares  will    affirm 


mmm 


C-IO       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

that  his  wares  are  good,  or  the  horse  which  he  sells  is  sound; 
yet  if  he  does  not  warrant  them  to  be  so  it  is  no  cause  of 
action."  This  was  the  reason  assigned  for  the  decision.  It 
was  not  denied  that  the  defendant  would  have  been  liable  if  ho 
had  warranted  the  stone ;  but  a  mere  affirmation  was  held  not 
to  be  a  warranty.  No  distinction  was  made  between  an 
affirmation  as  to  the  character  of  an  article,  and  an  affirmation 
as  to  its  condition  or  quality.  The  doctrine  laid  down  is  that 
a  mere  .affirmation  or  representation  as  to  the  character  or 
quality  of  goods  sold  will  not  constitute  a  warranty;  and  that 
doctrine  has  long  since  been  exploded,  and  the  case  itself  is  no 
longer  regarded  as  good  law  in  this  country  or  England. 
Hilliard  on  Sales,  237,  note;  2  Kent's  Com.  [Comstock's 
Ed.]  633,  note  a;  2  .Smith's  Leading  Cases  [5  Am.  Ed.],  23S; 
Bradford   v.  Manly,    13   Mass.  139;   otone  v.  Denny,  4  Mete. 

The  case  of  Seixas  v.  Woods,  2  Games,  48,  seems  to  have 
been  decided  mainly  upon  the  authority  of  the  case  of  Chandelor 
V.  Lopus.  That  was  an  action  on  the  case  for  selling  peachum 
wood  for  brazilletto;  the  former  worth  hardly  anything,  the 
latter  of  considerable  value.  The  defendant  advertised  the 
wood  as  bra/.illetto,  showed  plaintiffs  the  invoice  in  which  it 
was  so  described,  and  billed  it  to  the  plaintiffs  as  such.  The 
plaintiffs  had  a  verdict,  subject  to  the  opinion  of  the  court;  and 
the  court  held  t'.ac  there  was  no  express  warranty  and  that  the 
defendant  was  not,  therefore,  liable.  There  was  no  intimation 
in  the  opinion  delivered  that  there  was  any  difference  between 
a  warranty  as  to  the  character  of  an  article  soid  and  a  warranty 
as  to  its  condition  and  quality.  The  court  simply  held  that  the 
representations  on  the  part  of  the  defendant  did  not  amount  to 
an  express  warranty.  They  were  laying  down  broadly  the 
common  law  doctrine  of  caveat  cwftor  and  combating  the  im- 
plied warranties  of  the  civil  law.  Hence  j^reat  stress  was  laid 
upon  the  rc(iuirenumt  of  an  express  warranty.  The  rule  as 
thus  laid  down  ha-  I'een  thoroughly  overturned  since  the  courts 
hold  that  only  positive  affirmation  or  representation  as  to  the 
character  or  quality  of  an  article  sold  may  constitute  a  war- 
ranty. The  case  has  been  much  questioned  and  can  no  longer 
be  regarded  as  authority  for  the  precise  point  decided..  2  Kent's 
Com.  [Comstock's  Ed.]  633;  Stone  v.   Denny,   4  Mete.  151; 


OPERTY. 

Is  is  sound; 
no  cause  of 
decision.  It 
n  liable  if  he 
vas  held  not 

be^\vcen  an 
n  affirmation 

down  is  that 

character  or 
ty;  and  that 
se  itself  is  no 
or    England. 

[Comstock's 

,.Ed.],23S; 

nny,  4  Mete. 

;ems  to  have 
of  Chandelor 
ling  peachum 
mything,  the 
dvcrtised   the 

in  which  it 
i  such.  The 
le  court;  and 
and  that  the 
no  intimation 
;nce  between 
id  a  warranty 
held  that  the 
ot  amount  to 
.  broadly  the 
ating  the  im- 
ress  was  laid 

The  rule  as 
ice  the  courts 
ion  as  to  the 
titute  a  war- 
:an  no  longer- 
led..  2  Kent's 
f  Mete.  151  ; 


HAWKINS    V.  PEMBrUTON. 


631 


Hcnshaw  v.  Robins,  9  Id.  83,  89;  Binnardv.  Spring,  43  Barb. 
,-0;  Hart  V.  Wright,  17  Wend.  367,  271  ;  Bonekins  v.  Bevan, 
Vsc'rg.  &  R.  37.     The  case  holds  that  a  vendor  is  liable  upon 
■-ui  express  warranty  of  the  character  of  the  arl'de  sold;  and  the 
more  recent  cases  hold   that  a  positive  aflirmation     understood 
uid  relied  upon  as  such  by  the  vendee,  is  an  express  warranty. 
The  case  of  Swctt  v.  Colgate,  20   Johns.  196,  is  quite  analo- 
-rous  to  the  case  of  Seixas  v.  Woods,   and  was  decided  mamly 
upon  the  authority  of  that  case.     The  defendants  purchased  at 
•uiction  goods  invoiced,  advertised,  and   sold   as  barilla,  when 
„i  fact  it  was  kelp,  a  much  inferior  article.     It  came  before  the 
supreme  court  upon  a  case  containing  the  facts;   and  the  court 
exercising  the  province  of  a  jury,  drew   the   inference   from  all 
the  facts        the  case  that  there  was  no  warranty,  laying  down, 
ho  •  ever,  the  rule,  that  if  there  had  been  a  warranty,  the  ven- 
dors would  have  been  liable.     No   intimation   is  contained  in 
the  case  that  there  is  any  difference  between  an  affirmation  oy 
tb-  vendor  as  to  the  chavacter  of  the  article  sold  and  one  as  to 
lis  quality  or  c.nul..ion.     Upon  the    same  state  of  facts  as  the 
law  is  now  settled,  it  would  be  a  question  of  fact  for  the  jury 
whether  or  not  there  was  a  warranty. 

The  cn-es  of  Seixas  v.  Woods  and  of  Swctt  v.  Colgate, 
have  be.  n  fic.u-ently  cited  in  our  courts,  and  have  doubtless 
mlluenced,  u-.i',  it  miiy  be,  controlled  the  decisions  in  other 
cises  The  propositions  of  law  announced  in  them  are  suffi- 
ciently correct;  but  in  view  of  the  rules  of  law  as  now  settled 
in  this  and  ocher  states,  I  am  of  opinion  that  the  law  was 
not  properly  applied  to  the  facts  appearing  in  those  cases. 

Here  was  a  positive  representation  that  the  article  sold  was 
blue  vitriol ;  the  plaintiff  meant  the  purchasers  to  understand 
that  it  was  blue  vitriol,  and  he  sold  it  as  such.  The  de:endants 
relied  upon  the  representation,  believing  it  to  be  blue  vitriol, 
iuul  bought  it  as  such.  If  upon  these  facts  the  court  svas  not 
authorized  to  hold  as  matter  of  law  that  there  was  a  warra.ity, 
it  was  at  least  bound  to  submit  the  question  of  warranty  to  the 

^"in  Allan  v.  Lak'^  iS  Adolphus  &  Ellis,  N.  R.  561,  the  de- 
.endants  sold  plaintiff  a  parcel  of  turnip  seed  and  gave  them  a 
sold  note  in  which  it  was  described  as  ^'Skirving's  Swedes." 
It  proved  not  to  be  such  but  of  an   inferior  and  spunous  kind. 


6t,2     modes  ok  obtaining  title  to  personal  property 


The  court  of  queen's  bench  held  that  the  statement  in  the  sold 
note  was  not  mere  representation  or  matter  of  description,  but 
that  it  amounted  to  a  warranty  that  the  seed  was  Slcirving's 
Swcilcs. 

In  Jiridjje  v.  Wain,  i  Starkie,  N.  P.  410,  the  defcndan;.  sold 
to  the  plaintiff  a  quantity  of  scarlet  cuttings  intended  for  the 
Chinese  marUct  and  wiiich  were  understood  among  merchants 
to  mean  cnttings  of  cloth  only,  without  mixture  of  serge  or 
other  materials ;  and  it  was  proved  the  article  sold  contained  a 
quantity  of  serge  and  that  a  part  consisted  of  much  smaller 
shreds  than  that  usually  sent  to  China,  and  that  it  would  be 
very  unprofitable,  if  not  wholly  unsalable.  There  was  no 
special  warranty,  but  it  ,'tppeared  that  in  the  bill  of  parcels  the 
goods  were  described  as  scarlet  cuttings,  and  Lord  Ellenbor- 
ough  ruled  that  if  they  were  sold  by  the  name  of  scarlet  cuttings 
and  were  so  described  in  the  invoices,  an  undertaking  that  they 
were  such  must  be  inferred. 

In  Power  v.  Barham,  4  Adolphus  &  Ellis,  473,  the  action 
was  for  breach  of  warranty  in  the  sale  of  pictures.  It  was 
proved,  among  other  things,  that  the  defendant  at  the  time  of 
the  sale  gave  ihe  following  bill  of  parcels:  "Four  pictures, 
views  in  Venice,  Canaletto,  ^^160."  The  judge  left  it  to  the 
jury  upon  this  and  the  rest  of  the  evidence,  whether  the  defend- 
ant had  contracted  that  the  pictures  were  those  of  the  artist 
named,  or  whether  his  name  had  been  used  merely  as  matter 
of  description  or  intimation  of  opinion.  The  jury  found  for 
the  plaintiff,  saying  that  the  b  il  of  parcels  amounted  to  a  war- 
ranty. The  king's  bench  held  that  the  question  of  warranty 
was  rightly  left  to  the  jury,  and  that  the  verdict  should  not  be 
disturbed.  Lord  Denham  says:  "It  was  for  the  jury  to  say, 
under  all  the  circumstances,  what  was  the  effect  of  the  words, 
and  whether  thoy  implied  a  warranty  of  genuineness,  or  con- 
veyed only  a  description  or  an  expression  of  opinion." 

In  Bonekins  v.  Bevan,  3  Serg.  &  Rawle,  37,  Rogers,  J., 
says:  "From  a  critical  examination  of  all  the  cases,  it  may  be 
safely  ruled  that  a  sample  or  a  description  in  a  sale  note,  ad- 
vertisement, bill  of  parcels,  or  invoice  is  equivalent  to  an  ex- 
press warranty  that  the  goods  are  what  they  are  described  or 
represented  to  be  by  the  vendor." 


\4 


lOPEUTY. 

It  in  the  sold 
icription,  but 
as  Skirving's 

efcndaPi.  sold 
nded  for  the 
ig  merchants 
!  of  serge  or 
1  contained  a 
nuch  smaller 
it  would  be 
here  was  no 
f  parcels  the 
>rd  Ellp.nbor- 
;arlet  cuttings 
ing  that  they 

'3,  the  action 
jres.  It  was 
t  the  time  of 
our  pictures, 
left  it  to  the 
:r  the  defend- 
of  the  artist 
;ly  as  matter 
iry  found  for 
ted  to  a  war- 
of  warranty 
hould  not  be 
jury  to  say, 
of  the  words, 
ness,  or  con- 
on." 

Rogers,  J., 
ses,  it  may  be 
sale  note,  ad- 
ent  to  an  ex- 
described  or 


HAWKINS    V.   PEMBERTON. 


633 


In  Bradford  V.  Manly,   13   Mass.    145,   Chief  Justice  Parker 
refers  to  a  case  which  came  before  him  at  nisi  fritis  of  which 
he  says:    "An  advertisement  appeared  in  the  papers  which  was 
published  by  a  very  respectable  mercantile  house,  offering  for 
sale  good  Caiaccas  cocoa.     The  plaintiff  made  a  purchase  of 
a  considerable  quantity  and  shipped  it  to  Spain,  having  exam- 
ined it  at  the  store  before  he  purchased;  but  he  did  not  know 
the   difference   between   Caraccas    and    other   cocoa.     In    the 
market  to  which  he  shipped  it  there  was  a   considerable  diffcr- 
e-ice  in  value  in   favor  of  Caraccas.     It  was  proved   that   the 
cocoa  was  of  the  growth  of  some  other  place  and  that  it  was 
not  worth  so  much  in  the   market.     I  held  that   the   advertise- 
ment was  equal  to  an  express  warranty,  and  the  jury  gave  dam- 
ao-es  accordingly.     The   defendant   had  eminent  counsel   and 
they  thought  of  saving  the  question,  but  afterward  abandoned 
it  and  suffered  judgment  to  go." 

In  Henshaw  v.  Robins,  0  Metcalf,  S3,  it  was  held  in  a  case 
quite  analogous  to  the  one  now  under  consideration  that  where 
a  bill  of  parcels  is  given  upon  a  sale  of  goods,  describing  the 
goods  or  designating  them  by  a  name  well  understood,  such 
bill  is  to  be  considered  as  a  warranty  that  the  goods  sold  are 
what  they  are  thus  described  or  designated  to  be ;  and  that  this 
rule  applies,  though  the  goods  are  examined  by  the  purchaser 
at  or  before  the  sale,  if  they  are  so  prepared  and  present  such 
an  appearance  as  to  deceive  a  skillful  dealer.  It  can  make  no 
difference  that  in  most  of  the  cases  cited,  the  description  of  the 
articles  sold  was  contained  in  a  sale  note  or  bill  of  sale.  The 
same  affirmation  made  orally  must,  upon  principle,  have  the 
same  force  and  effect. 

I  therefore  reach  the  conclusion,  both  upon  principle  and 
authority,  that  upon  the  facts  of  this  case  the  jury  might  prop- 
erly have  inferred  that  there  was,  upon  the  sale,  a  warranty 
that  the  article  sold  was  blue  vitriol.  It  was,  at  least,  the  duty 
of  the  court  to  have  submitted  the  question  of  warranty  to  the 
jury.  I  think  the  facts  were  so  clear  and  undisputed,  that  the 
court  could,  without  error,  have  decided  as  a  question  of  law, 
thU  there  was  a  warranty,  but  this  it  is  unnecessary  to  decide 
upon  this  appeal. 

The   only  remaining  question  to    be  considered  is  whether 
there  was  a  breach  of  this  warranty,  and  this  can  need  but  little 


mm 


634       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPEIITY. 

discussion.  The  article  sold,  if  it  was  known  at  all  in  market, 
was  known  by  another  name.  It  had  only  from  seventeen  to 
twenty-five  per  cent  of  blue  vitriol  in  it,  but  a  different  sub- 
stance with  a  small  admixture  of  blue  vitriol. 

The  judgment  should,  therefore,  be  reversed  and  a  nev;  trial 

granted,  costs  to  abide  the  event. 

All  concurring. 

Consult— Habcock  v.  Trice,  iS  111.  420,  63  Am.  Dec.  560;  Borrekens 
V.  Bevans,  3  Rawle,  23,  23  Am.  Dec.  S5;  Henshaw  v.  Robins,9  Mete.  83, 
43  Am.  Dec.  367;  Van  Wyck  v.  Allen,  69  N.  Y.  61,  25  Am.  Rep.  136; 
Foggv.  Rogers,  84X3-.  558;  Pope  v.  AUis,  115  U.  S.  363;  White  Bronze 
Co.  V.  Gillette,  88  Mich.  331;  White  v.  Miller,  71  N.  Y.  168,  27  Am. 
Rep.  13;  Jones  v,  George,  61  Tex.  345,  48  Am.  Rep.  280;  Forcheimer  v. 
Stewart,  65  Iowa,  594,  54  Am.  Rep.  30;  Gould  v.  Stein,  149  Mass.  570; 
Brantlev  V.  Thomas,  22  Tex.  270,  73  Am.  Dec.  264;  Grieb  v.  Cole,  60 
Mich.  397. 


§  106.    Same— That  article  manufactured  is  fit  for  usual 
purpose. 

RANDALL  v.  NEVVSON. 

[2  Q.  B.  Div.  102.1 

English  Court  of  Appeal,  1877. 

Statement  of  the  claim,  that  plaintiff  bought  of  defendant,  a 
carriage  manufacturer,  a  phaeton  for  two  horses,  the  pole  made 
and  supplied  for  which  was  so  carelessly  and  negligently  made, 
and  of  such  bad  and  improper  wood,  that  while  the  plaintiff 
was  driving  the  phaeton  the  pole  broke  and  caused  the  horses 
to  run  away,  and  the  horses  were  damaged. 

Defense,  denying  that  the  pole  was  carelessly  or  negligently 
made,  or  of  biid  or  improper  wood;  and  not  admitting  that  the- 
pole  broke  by  reason  of  any  defect  in  the  wood,  or  that  the 
defendant  sold  the  phaeton  under  such  circumstances  as  to 
render   him    liable   for   the    consequences  of    a  latent  defect. 

Issue  joined. 

At  the  trial  before  Archibald,  J.,  at  the  Middlesex  Hilary 
sittings,  1876,  it  appeared  that  the  plaintiff  bought  of  the 
defendant,  who  was  a  carriage  builder,  a  phaeton,  in  August, 


m 


1 


:-* 


iM 


DPEIITY. 

1  in  market, 
;eventeen  to 
ifferciit  sub- 

1  a  nev/  trial 

!  concurring. 

5o;  Borrekens 
ns,  9  Mete.  83, 
im.  Rep.  136; 
White  Bronze 
.  168,  27  Am. 
Forcheimer  v. 
;49  Mass.  570; 
eb  V.  Cole,  60 


fit  for  usual 


RANDALL   V.  NEWSON. 


635 


defendant,  a 
he  pole  made 
gently  made, 
3  the  plaintiff 
ed  the  hoises 

r  negligently 
tling  that  the- 
I,  or  that  the 
stances  as  to 
latent  defect. 

dlescx  Hilary 
lought  of  the 
1,  in  August, 


1S74;  it  was  only  fitted  with  shafts  for  one  horse,  and  the 
plaintiff  gave  orders  to  the  defendant  for  a  pole  and  splinter- 
bar  to  be  made  and  fitted  to  it. 

The  phaeton  was  sent  home  with  the  pole  and  splinter-bar, 
ami  while  the  plaintiff  was  driving  it  with  two  horses  in  Octo- 
ber, 1S75,  the  horses  swerved  and  the  pole  broke  short  off  at 
the  carna^'c.  The  horses  in  consequence  became  restive  and 
were  much  damaged. 

There  was  much  contradictory   evidence  as  to  the  cause  of 
the  breaking  of  the  pole,  the  plaintiff's  witnesses  saying  it  was 
of  bad  wood,  while  the  defendant's  stated  that  the  wood  was 
perfectly  goo<l.     The  value  of  a  new  pole  was  agreed  at  £1, 
and  the  plaintiff  gave  evidence  that  his  horses  were  damaged  to 
between  i:i3o  and  £1^0.     The  learned  judge  expressed  .t  as 
his  opinion,  that  if  there  were  no  negligence  on  the  part  of  the 
defendant    in    making    the    pole,    or   in    the    selection    of   the 
materials,  the  plaintiff  could  not  recover  more   than  the  £7, ; 
and  he  left  to  the  jury  two  questions:      i.  Was  the  po'.e  rea- 
sonably fit  and  proper  for  the  carriage.?     3.  Was  the  defend- 
ant guilty  of  any  negligence?     And  he  asked  the  jury  also  to 
assess  the  consequential  damages,  in  case  they  should  become 
miterial.     The  learned  judge  was  obliged  to  leave  the  court  to 
attend  a  meeting  of   the  judges,  before  the  jury  had  returned 

their  verdict. 

The  jury  answered  both  questions  in  the  negative,  and  as  to 
the  damages,  said  they  understood  from  the  judge  that  £7,  was 

all  they  could  find. 

On  these  findings,  the  verdict  and  judgment  were  entered  for 
the  plaintiff  for  ^3,  with  leave  to  move  to  enter  judgment  for 

the  defendant. 

The  defendant  gave  not-ce  of  motion  accordnigly;  and  the 
plaintiff  obtained  an  order  for  a  new  trial  on  the  ground  of 
misdirection  by  the  learned  judge  as  to  the  measure  of  damages. 

The  court  (Blackburn  and  Lush,  jJ.)  ordered  judgment  to 
be  entered  for  the  defendant,  on  the  ground  that  the  answers  of 
the  jury  amounted  to  a  finding  of  a  latent  defect  in  the  wood  of 
the  pole,  which  no  care  nor  skill  could  discover,  and  that  the 
principle  of  the  decision  in  Readhead  v.  Railway  Co.,  L.  R. 
4  Q-  B.  379,  extended  to  the  sale  of  an  article  for  a  specific 
purpose. 


■I 


636       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PUOPKIITV. 


The  plaintiff  appealed. 

The  jiulgment  of  the   court   (Kelly,  C.  B.,  Mellish,   L.  J., 
and  Brett  and  Amphlett,  JJ.  A.)  was  delivered  by 

BiJF.TT,  J.  A. — This  case  was  tried  upon  the  footing  tnat  it 
was  an  action  brought  against  the  defendant,  a  coachbiikler,  to 
recover  damages  in  respect  of  injuries  to  the  plaintiff's  horses 
and  carriage,  by  reason   of  the   defendant   having  supplied  to 
the  plaintiff  a   defective  carriage  pole.     The  jury    found  that 
the  pole  was  not  reasonably  fit  and   proper   for  the  use  of  the 
carriage ;  but  that  there  was  no  negligence  on  the  part  of  the 
defendant  (including,  of  course,  his  servants  or  agents)  in  sup- 
plying the  pole.     The  price   of   a  new  pole  was  ;£^.     The 
damage  done  to  the  horses  and  carriage  was  much  more.     But 
the   only  damages   found  by   the  jury  were  ^^3.     Upon  these 
findings  the  court  of  queen's  bench,  applying  to   this   contract 
the  principle  laid  down  in  Readhead  v.  Railway  Co.,  L.  R.  2, 
Q.   B.  413;   in  error  L.  R.  4,  Q.  B.  379,  gave  judgment  for 
the  defendant.     No  dispute  was  made  at  the  trial,  or  in  argu- 
ment, as  to  the  nature  of  the   order  given   and  accepted ;   the 
questions  argued  were  whether  the  defendant  was  liable  at  all, 
and  what  was  the  extent  of  damages  to  which  he  might  be  sub- 
jected, if  he  was  liable  at  all.     Now  as  to  these  questions,  it  is 
to  be  taken,  although  nothing  specific  seems  to  have  been  said, 
that  the  order  given  and  accepted  was  not  merely  for  a  pole  in 
general,  but  for  the  supply  of  a  pole  for  the  plaintiff's  carriage; 
and  that  the  contract  therefore  was  for  the  purchase  and  sale, 
or  supply,  of  an  article  for  a  specific  purpose.     In  other  words, 
the  subject-matter  of  the  contract  was  not  merely  a  pole,  but  a 
pole  for  the  purchaser's  carriage;  or,  to  state  the  proposition 
in  an  equivalent  form,  the  thing,  which  would,  if  the  contract 
were  formally  drawn  up,  be  desTibed  in   it  as   the  subject- 
matter  of  it,  would  not  be  merely  a  pole  generally,  but  a  pole 
to  be   purJua,  °d  for  a  specific  purpose,  namely,  to  be  used  in 
the  plaintiff's  carriage.     The  question  is,  what,  in  such  aeon- 
tract,  is  the   implied   undertaking  of  the  seller  as   to  the  effi- 
ciency of  the  pole.?     Is  it  an  absolute  warranty  that  the  pole 
shall  be  reasonably  fit  for  the  purpose,  or  is  it  only  partially  to 
that   effect,  limited  to  defects  which  might  be  discovered  by 
care  and  skill? 


^m 


jpKiirv. 


lish,   L.  J., 


oting  tnat  it 
hbiikler,  to 
tiff's  horses 
supplied  to 
found  that 
e  use  of  the 
2  part  of  the 
snts)  in  sup- 
;  £i.     The 
more.     But 
Upon  these 
his  contract 
o.,  L.  R.  2, 
udgment  for 
or  in  argu- 
:cepted ;   the 
liable  at  all, 
light  be  sub- 
lestions,  it  is 
'e  been  said, 
"or  a  pole  in 
[f's  carriage; 
ise  and  sale, 
other  words, 
\  pole,  but  a 
proposition 
the  contract 
the  subject- 
',  but  a  pole 
:o  be  used  in 
such  a  con- 
to  the  effi- 
hat  the  pole 
y  partially  to 
liscovered  by 


RANDALL    V.  NEWSON. 


637 


In  order  to  decide  this  question  it  seems  advisable  to  asce-  - 
tain   the  primary  or  governing  principle  on  which  the  earlier 
cases  were  decided,  and  to  sec  whether  the  principle  on  which 
they  were  decided   ought  to  be   modified  by  the    decision  m 
Re-idhead  v.  Railway  Company.     The  earliest  case  seems  to 
be  Parkinson  v.  Lee,  2  East,   314,  in  1S02.     It  is  suir.cient  to 
sav  of   it  that,  either  it  does   not  determine   the  extent  of  the 
seller's   liability   on   the    contract,    or    it   has  been  overruled. 
Neither  can  the  case  of  Fisher  v.   Samuda,    i  Camp.    190,  in 
iSoS   be  said  to  decide  anything.  The  first  cases  of  importance 
are  Gardiner  v.  Gray,  4  Camp.  144,  and  Laing  v.  Fidgeon,    6 
Tumt.    loS,  in   1S15.     In   Gardiner  v.  Gray  the  contract  was 
for    the   purchase    and   sale   of   "waste  silk."     The   silk  was 
imported,  and  the  bulk  had  not  been  seen,  either  by  the  defend- 
ant, the  seller,  or  the  plaintiff,  the  buyer.     Lord  Ellenborough 
Slid:     "I  am  of  opinion  that,  under  such  circumstances"  (1.  e. 
a  sale  of  silk  as  waste  silk)  "the  purchaser  has  a  right  to  expect 
a  salable    article,  answering  the  description   in  the  contract. 
Without  any  particular  warranty,  this   is  an  implied   term  in 
every  such  contract."     The  contract  was  for  the  purchase  and 
s  de  of  a  commodity  described  generally,   not  described  to  be 
ordered  or  supplied  for  a  particular  purpose.     The  description 
of  "it  was  that  it  was  waste  silk.     From  that  it  is  implied  that  it 
is   or   in  other  words,  it  is  assumed  that  it  might  be,  specifically 
described   as  salable  waste  silk.     The  decision,   therefore,   is 
that   the    commodity   offered    and   delivered  must  answer  the 
description  of   it,  and  be  salable  waste  silk.     The  principle  is 
thU  the  commodity  offered  must  answer  the  description  of  it  in 
the   contract.     Laing   v.   Fidgeon   is  to  the   same   c^f^^t.     In 
Grayv.  Cox,4B.&C.  108,  115,  in  1S25,  the  case  was  decided 
on  a  variance;  but  Abbott,  C.  J.,  stated  that  he  was  of  opinion 
"that  if  a  person  sold  a  commodity  for  a  particular  purpose,  he 
must  be  understood  to  warrant  it  reason.ibly  fit  and  proper  for 
such    purpose."     The    commodity    offered    was    copper   for 
sheathing   the   ship    Coventry.     It  was  proved  that  no  defect 
could  be   discovered  by  inspection  of  the  article,  and  it  was 
admitted  that  the  defendants  were  ignorant  of  the  detective 
quality  of  the  copper.     It  is  obvious  that  Lord  Tenterden  did 
not  consider  the  seller  relieved  by  reason  of  the  defect  being 
latent.  • 


63S       MODI'S  Ol-  OIITAININC;  TITI.F.  TO  PEUSONAL  PIIOPEUTY. 

This  riiliiij;  of  Lord  Tcntcnlen  was  adopted  in  the  decision 
of  Jones  V.  Uii<;lit,  5   Bing.  5,53,  S-P-  ''^    ^^'9-     '•^'•'^  contract 
was  for  copper  slieathinfjc  for  a  ship.     The  qnestion  proposed 
by  Liidlow,  Scrjt.,  in  ar.^nmcnt  was,  "whether  the   hiw  will, 
accordin-?  to   the   dictum  of   Lord  Tentcrden,  in  (Jray  v.  Cox. 
4  B.  ^C  C,  at  page  115,  lay  upon  the  seller  or  manuf.icturer  an 
obligation  to  warrant  in  all  cases  that  the  article  which  he  sells 
shall  be  rcasonalily  lit  and  proper  for  the  purpose  for  which  it 
is  intended,  and  render  him  responsible  for  all  the  consetpienccs 
which  m.iy  result,  if  it  shall  be  found  not  to  answer  the  purpose 
for  which  it  was  designed,  and  that,  on  account  of   some  latent 
defect,    of    which    he    was    ignorant,   and   which   shall   not  be 
proved  to  liave  arisen  from  any  want  of  skill  on  his  part,  or  the 
use   of   improper    materials,    or    any    accident   against   which 
human  prudence  might  have  been  capable  of  guarding  him." 
Hero,  therefore,  the  whole  proposition,  with  and  without  limi- 
tations, was  plainly  laid  before  the  judges  for  their  consideration. 
The  answer  given  by  Best,  C.  J.,  was:      "I  wish  to  put  the 
case  on  a  broad  principle.     If  a  man  sells  an  article,  he  thereby 
warrants  that  it  is  merchantable,— that  it  is  fit  for  some  purpose. 
If  he  sells  it  for  that  particular  purpose,  he  thereby  warrants  it 
fit   for   that   purpose.     »     *     »     Whether    or    not  an   article 
has  been   sold  for  a  particular  purpose   is,    indeed,    a  ques- 
tion of  fact;  but   if  sold  for    such   purpose,    the    sale    is    an 
undertaking   that   it   is   fit.     *     *     *     The  law  then  resolves 
itself   into  this,— that  if   a  man  sells  generally,  he   undertakes 
that  the  article  sold  is  fit  for  some  purpose ;   if  he  sells  it  for  a 
particular  purpose,  he  undertakes  that  it  shall  be  fit  for  that 
particular  purpose."     Nothing  can  be  more  clear  than  that  the 
rule  is  advisedly  enunciated  as  a  warranty  without  limitation. 
Brown  v.  Edgington,  2  M.  &  G.  279,  is  to  the  same  effect. 

In  Wieler  v.  Schilizzi,  17  C.  B.  619,  622,  25  L.  J.  (C.  P.) 
89,  the  contract  was  for  "Calcutta  linseed."  Jervis,  C.  J., 
told  the  jury  that  the  question  for  them  to  consider  was 
"whether  there  was  such  an  admixture  of  foreign  substances  in 
it  as  to  alter  the  distinctive  character  of  the  article,  and  prevent 
it  from  answering  the  description  of  it  in  the  contract." 
Creswell,  J.,  said:  "They  were  to  say  whether  the  article 
delivered  reasonably  answered  the  description  of  Calcutta  lin- 
seed."    Crowder,  J.,  said:   "The  jury  in  effect  found  that  the 


mm 


OPEIITY. 


RANDALL   V,  NEWSOV. 


^'39 


the  decision 
rhc  contract 
on  proposed 
he   hiw  will, 
Jr;iy  v.  Cox. 
luf.ictiirer  an 
•hicli  he  sells 
:  for  which  it 
lonseqiiences 
r  the  purpose 
'   soine  latent 
shall   not  be 
s  part,  or  the 
gainst    which 
irding  him." 
without  limi- 
;onsideration. 
ish  to  put  the 
le,  he  thereby 
iomc  purpose. 
)y  warrants  it 
lot  an   article 
eed,    a  ques- 
e    sale    is    an 
then  resolves 
le   undertakes 
3  sells  it  for  a 
be  fit  for  that 
•  than  that  the 
lut  limitation, 
ime  effect. 
L.  J.  (C.  P.) 
Jervis,  C.  J., 
consider   was 
1  substances  in 
e,  and  prevent 
be    contract." 
ler  the  article 
f  Calcutta  lin- 
found  that  the 


uticlc  delivered  did  not  reasonably  answer  the  description  in 
"the  contract."      Wilk-s.  J.,   said:    "The  purcliaser  had  a  ri-ht 
to  expect,  not  a  perltct  article,  but  an   article  whicli   would  i-e 
salable  in  the  market  as  Calcutta  linseed.      If  he   ^'ot  an  article 
so  adulterated  as  not  reasonably  to  answer  that  description,  lie 
did  not  K'-'t  ^vhat  he  bargained  for."     In  this  case  it  is  to  be 
observed  Uial  all   the  judges  adopted  the    form   of    stating   the 
principle  which  was  used  by  Lord  Ellenborongh  in  CJardiner  v. 
(Irav,  4Camp.    i(^     In  Nichol  v.  (Jodts,  lo  Kx.  191.   23  L. 
J.  (b^x.)  314,  the  contract  was   for   "foreign   reliued   rape  oil, 
warranted  onlv  equ.il  to  samples."      Tiie  oil  offered  was  ecpial 
to  samples,  but  both  samples  and  oil  were  adulterated.     Parke, 
15.,  told  the  jury  "that  the  statement  in  the  sold  note  as  to  the 
samples  related   to   the    (piality   only   of   the  article,   and   that 
according  to  the   contract  the   defendant  was  entitled  to  have 
rape    oil"  delivered    to  him."     Piatt,    1?.,   in  i)aiic,    said:      "I 
understand  that  the  oil  to  be  delivered  was  to  be  equal  to  the 
samples  in  quality.     But  the  defendant  did  not  refuse  to  accept 
the  oil  tendered  to  him  on  the  ground  that  it  did  not  equal  the 
samples,  but  on  account  of  its  not  being  foreign  refined  rape 
oil  at  all.     And  the  learned  judge  told   the  jury  that  if   they 
should  think  that  it  was  so,  the  defendant  was  not  bound  to 
accept    it.     That    direction    was    perfectly    correct.     If    the 
jury  had  found  that  the  article  which  the  plaintiff  tendered  was 
known  in  the  market  under  the  name  and  description  of  foreign 
refined  rape  oil,  the  plaintiff  would  have  been  entitled  to  suc- 
ceed;   but  the  question  was  put  to  the  jury,  and  they  were  of 
opinion  that  it  was  not  known  as  such."     And    Parke,   B., 
said,  "the  evidence  went  to  show  that  the  oil  offered  did  not 
answer  the  description  of  the  article  sold." 

This  form  of  stating  the  rule  was  distinctly  adopted  in  Jos- 
lin"  V.  Kingsford,  13  C.  B.  (N.  S.)  447,  32  L.  J.  (C.  P.)  94, 
by  Krle,  C.  J.,  and  VViUes,  J.  Erie,  C.  J.,  told  the  jury  "that 
the  defendant  could  only  perform  his  part  of  the  contract  by 
delivering  that  which  in  commercial  language  might  properly 
be  said  to  come  under  the  denomination  of  oxalic  acid ;  and 
that  if  they  should  be  of  opinion  that  the  article  delivered  by 
the  defendant  as  oxalic  acid  did  not  properly  fulfill  that  descrip- 
tion they  should  find  for  the  plaintiff." 


m 


6.,0      MOU.S  OK  OBTA.N.NG  TITLE  TO  PEUSONAt.  rUOfEUTV. 

I  have   cited   these  ca.es,    and   the   principles  laid  down  in 
the,.,  in  order  clearly  to  ascertain  what  is  the  prnnary  or  ul^ 

I  e  rule  from  which  the   rules  which  have  been   appl.ed   to 
o  tr  cts  of  purchase  and  sale  of  somewhat  d.fferent  U.nds    av. 
be      deduced.     Those  different  rules,  as  appl.ed  to  such  d  ffer- 
e  no  tracts,  are  carefully  enuu.erated  and  recogn.zed  m  Jones 
IT     R    ^  Q    B.  .07.     In  '^om'^  contracts  the  underlak- 
;; ':;  'the's    ie    i?said  toL  only  that  the  article  shall  he  mer- 
:il    e;   in  others,  that  it  shall  be  reasonably  ft  ^.r  t  e  pur- 
pose to  which  it  is  to  be  applied,     In  all,  .t  seems  to  us,   .      s 
eUhe     assumed  or  expressly  stated,  that  the  fundamental  unde- 

UnVis  It  the  ariicle  offered  or  delivered  shall  answer  the 

lue  others:  they  are  adaptations  of  it  to  part.cnlar  knuls  o 
com    cU  of   purchase    and    sale.     You  must,   therefore      ns 
det    mine  from  the  words  used,  or  the  circumstances,  what,  .: 
o       "  rdin,  to  the  contract,  is  the  real  mercautde  or  busn.ess 
1 "  ption  of  the  thin,  which  is  the  subject-matter  of  the  ba  - 
IZ  of  purchase  or  sale,  or,  in  other  words,  the  contract.     If 
SsubLt-matter  be  merely  the   commercial   arUcle   or  com- 
lUv    tl  e  undertaking  is,  that  the  thing  offered  or  dehvered 
Tl    msw  r  t  a    Iscrrpti^n,  that  is  to  say,  shall  be  that  article 
orZct      salable  ir  merchantable.     If   the  subject-matter 
beana    icle'or  commodity  to  be  used  for  a  part.cular  purpose 
the  t^nn.  offered  or  delivered  must  answer  thatdescr.pt.on,  th  t 
s  to  s  ;  it  must  be  that  article  or  commodity,  and  reasonably 
mTo    te  particular  purpose.     The  governing  prmc.ple    there- 
r      \s  th.t  the  thing  offered  and  delivered  .under  a  contract  of 

^        i::ed  in  words  in  the  contract,  or  which  would    e  so  con- 

T-nPrl  if  the  contract  were  accurately  drawn  out.     And  if  that 

:   he  govern"  g  principle,  there  is  no  place  in  it  for  the  sug- 

.a  irrlitntion.     If  the  article  or  commodity  offered  or  debv- 

'"Tdor  o   in    act  answer  the  description  of  it  in  the  contract, 

Udoes  no   dlso  more  or  less  because  the  defect  in  it  is  patent. 

iTt   or  discoverable.     And  accordingly  there   .s  no  sug- 
o.  latent   or  d.sove  _^  ^^  ^^^^    ^^^^^^^^^^  .^  ^^^^^ 

Sirgtrntrlctsof  purchase   and   sale.     Unless,  th.efo.e 
he'ei?  some  binding  authority  to  the   contrary,   we  ought  not 


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RANDALL    V.   NEWSON. 


64  I 


now  to  introduce  by  implication  a  limitation   into   contracts  of 
purchase  and  sale  which  has  never  been  introduced  before. 

It  is  said  that  the  case  of  Readhead  v.  Railway  Co.,  L.  R.  4 
Q.  B.  379,  3S6,  in  error,  is  such  a  binding  authority.  But  in 
answer  to  the  cases  cited  of  the  implied  undertaking  in  con- 
tracts of  purchase  and  sale,  Montague  Smith,  J.,  says:  "The 
counsel  for  the  plaintiff  referred  to  some  of  the  cases  in  which 
it  had  been  held  that  in  contracts  for  the  supply  of  goods  for  a 
particular  purpose,  there  is  an  implied  warranty  that  the  goods 
supplied  shall  be  reasonably  fit  for  that  purpose.  *  *  * 
But  the  agreement  to  sell  and  supply  for  a  price  which  may  be 
assumed  to  represent  their  value  is  a  contract  of  a  different 
nature  from  a  contract  to  carry,  and  has  essentially  different 
incidents  attaching  to  it."  It  is  true  that  the  learned  judge 
afterward  says:  "Even  in  the  cases  of  contracts  to  supply 
goods  it  may  be  a  question,  on  which  it  is  not  now  necessary  to 
express  an  opinion,  how  far  and  to  what  extent  the  vendor 
would  be  liable  to  the  vendee  in  the  case  of  a  latent  defect  of 
the  kind  existing  in  the  present  case  which  no  skill  or  care 
could  prevent  or  detect."  But  it  seems  impossible  logically  to 
hold  that  a  case — in  which  the  court  declined  to  follow  the 
decisions  on  contracts  of  purchase  and  sale,  on  the  ground  that 
those  contracts  are  of  a  different  nature  and  have  essentially 
different  incidents  from  the  contract  to  carry,  which  was  in 
discussion  in  that  case— can  be  fairly  binding  on  this  court,  so 
as  to  oblige  it  to  introduce  a  particular  limitation  into  a  contract 
of  purchase  and  sale,  because,  in  that  case,  it  was  introduced 
into  a  contract  to  carry  passengers. 

The  case  of  Francis  v.  Cockrell,  L.  R.  5  Q.  B.  501,  503,  is 
based  upon  Readhead  v.   Railway   Co.,   and  is,   therefore,   o£ 
itself  no  more  a  binding  authority   on   us  in   this  case  than  the 
other.     It  is  true,  however,   that  the  lord   chief  baron,   going 
further  than  the  doubt  expressed  by  Montague  Smith,  J.,  does 
''ecognize  the  limitation  as  applicable  to  contracts  of  purchase 
and  sale.     L.  R.  5  Q.  B.,  at  page  503.     But  the  statement  of 
tlie  learned  judge  was  not  necessary,  and  therefore  is  not  bind- 
ing, though  of  course  inviting   a  careful   consideration  of  the 
older  cases.     After  such  consideration,  for  the  reasons  before 
given,  we  are  of  opinion  that   the  undertaking  of   the  present 
4r 


642       MODES  OF  OnrAIXIXG  TITLE  TO  PERSONAL  PHOPEKTY. 

defendant  was  not  restricted  by  the  limitations  applied  to  the 
contract  of  carriage  in  Readhead  v.  Railway  Co.,  and  that  so 
lonc^  as  the  verdict  in  this  case  stands  it  imposes  a  liability  on 
thc'dcfcndant.  We  are,  therefore,  of  opinion  that  the  ]udg 
ment  of  the  court  of  queen's  bench  directing  the  judgment  to 
be  entered  for  the  defendant  was  wrong. 

In  the  court  of  queen's  bench  a  cross  rule  had  been  obtained 
on  behalf  of  the  plaintiff  for  a  new  trial,  on  the  ground  of  mis- 
direction as  to  the  measure  of  damages.     In  consequence  of  the 
decision  that  the  defendant  was  not  liable  at  all,  it  became  use- 
less  to  argue  the  point.     But  Mr.  Gates  has  renewed  it  before 
us,  and  has  asked  for  a  new  trial  on  the  ground  of  such  misdi- 
rection, desiring  to  have  such  new  trial  confined  to  the  question 
of  damage  only.     We  think  that  a  question  should  have  been 
left  to  the  jury  similar  to  that  which  was  left  in  Smith  v.  Green, 
I  C   P.  D.  92,  namely,  whether  the  injury  to  the  horses  was  or 
was  not  a  natural  consequence  of  the  defect  in  the  pole.     There 
ha.  '.een  a  miscarriage  in  this  respect   at  all   events.     We  are 
asked  to  confine  the  new  trial  to  the  question  of  damages,  but 
considering  that  the  real  question  is  not  whether  the  pole  was 
perfect,   but  only   whether   it  was  reasonably   fit,   we  can  not 
think  that  the  findings  of  the  jury    as   to  the   questions   left  to 
them  in  order  to  determine  the  liability  of  the  defendant  are  so 
satisfactory  as  to  authorize   us  to  confine  the   question  to  be 
raised  on  a  new  trial  to  the  damages  only.     We  think  that  the 
iud-ment  of  the  court  of  queen's  bench  should  be  reversed,  and 
that  the  order  should  be  for  anew  trial  generally,  if  the  plaintiff 
elects  to  have  a  new  trial  at  all.     If   he   does   not,   the    verdict 
and  judgment  for  the  plaintiff  for  i:3  will  stand. 

The  plaintiff  has  succeeded  on  the  appeal,   and  should  there- 
fore have  the  costs  of  the  appeal. 

Kelly,  C.  B..  in  assenting  to  the  judgment  of  the  court, 
observed  that,  if  the  language  imputed  to  him  in  Francis  v. 
Cockrell,  L.  R.  5  Q-  B.,  at  page  503,  be  correctly  reported,  he 
must  have  expressed  himself  inaccurately,  and  he  had  no  inten- 
tion to  apply  the  doctrine  in  Readhead' s  Case,  L.  R.  4  Q.  B. 
379,  to  a  contract  for  the  sale  and  purchase  of  an  article  to  be 

applied  to  a  specific  purpose. 

Judgment  reversed. 


PEKTV. 

)lied  to  the 
intl  that  so 
liability  on 
it  the  judg 
udgmcnt  to 

en  obtained 
und  of  mis- 
uence  of  the 
)ecame  use- 
;d  it  before 
such  misdi- 
the  question 
1  have  been 
th  V.  Green, 
orses  was  or 
ole.     There 
ts.     We  are 
iamages,  but 
the  pole  was 
,    we  can  not 
itions   left  to 
Midant  are  so 
lestion  to  be 
link  that  the 
reversed,  and 
f  the  plaintiff 
,   the    verdict 

should  there- 


of the  court, 
in  Francis  v. 
y  reported,  he 
had  no  inten- 
..  R.  4  Q.  B. 
n  article  to  be 

ment  reversed. 


GERST   V.  JONES. 


643 


Consult— Fairbank  Canning  Co.  v.  Metzgar,  iioN.  Y.  267;  Kellogg 
liritlge  Co.  V.  Hamilton,  no  U.S.  116;  Pease  v.  Sabine,  38  Vt.  232; 
White  V.  Miller.  71  N.  Y.  118;  Bragg  v.  Morrell,  49  Vt.  46;  Iloe  v. 
.Sanliorn,  21  N.  Y.  55^;  •'''la^  v.  Smith,  25  Pac.  Rep.  (Kan.)  886;  Chi- 
cago Packing  Co.  v.  Tilton,  87  111.  57;  Ilight  v.  Bacon,  126  Mass,  16; 
Deming  v.  Poster,  42  N.  II.  165. 


§  107.    Same— Article  sold  for  particular  purpose. 
GERST  V.  JONES. 

[32Gratt.  518;  34  Am.  Rep.  773. 1 

Supreme  Court  of  Appeals  of  Virginia,  iS^g. 

Action  by  D.  Jones  &  Company  against  Joseph  S.  Gerst  to 
recover  for  loss  occasioned  by  defendant  furnishing  to  plaintiffs 
unsuitable  boxes  in  which  to  pack  tobacco  manufactured  by 
them.  Plaintiffs  recovered  judgment  for  $1,602.36,  and  defend- 
ant obtained  a  writ  of  supersedeas.  The  opinion  states  the 
facts. 

Staples,  J. — The  plaintiffs  in  the  court  below  were  manu- 
facturers of  tobacco  in  the  town  of  Danville,  and  the  defendant 
was  at  the  same  time  engaged  in  the  business  of  manufacturing 
boxes  to  press  manufactured  tobacco.  The  defendant  agreed  to 
furnish  plaintffs  for  the  year  1870,  during  the  inanufacturing 
season,  as  many  boxes  as  the  latter  would  need,  at  the  price  of 
sixty-five  cents  per  box.  In  accordance  with  t'^is  arrangement, 
defendant  furnished  the  plaintiffs  all  the  boxes  they  needed  in 
the  year  1S70.  Plaintiffs  pressed  their  manufactured  tobacco 
in  these  boxes,  and  they  shipped  a  large  portion  of  it  to  their 
commission  merchants  in  Baltimore.  Of  the  tobacco  so  shipped, 
one  hundred  and  sixty-six  half  boxes,  containing  about  ten 
thousand  pounds,  were  moulded,  in  consequence  of  unseasoned 
timber  having  been  used  in  making  the  boxes,  and  eight  thou- 
sand pounds  remaining  in  the  factory  were  found,  on  examina- 
tion, to  be  moulded  from  the  same  cause.  The  plaintiff's 
damage  arising  from  the  moulded  tobacco  is  nine  cents  per 
pound. 

It  is  not  claimed  that  the  defendant  expressly  warranted  the 
boxes,  or  that  he  knew   they  were   not  suited  for  the  purposes 


644       MODES  OF  OBTAINING  TITLE  TO  PERSONAL   PKOrEHTY 


for  which  they  were  ordered.  The  evidence  shows,  however, 
that  the  timber  used  in  making  the  boxes  for  the  plaintiffs  had 
been  unduly  exposed  to  the  weather,  and  there  can  be  no 
doubt  but  that  the  defendant  was  apprised  of  the  fact.  It  also 
appears  that  it  was  customary  to  rely  on  the  manufacturer  of 
boxes  for  the  selection  and  use  of  proper  box  material  and 
timber,  and  the  manufacture  of  suitable  boxes,  and  it  is  not 
customary  for  tobacco  manufacturers  to  subject  the  boxes  fur- 
nished them  by  box  manufacturers  to  any  test  to  see  whether 
they  are  made  of  thoroughly  seasoned  or  dry  timber,  but  they 
rely  upon  the  box  mamifacturer  to  do  this,  and  that  it  is  his 
business  to  do  so. 

i:pon  these  facts  two  questions  are  presented :  Is  the  defend- 
ant liable  in  damages  to  the  plaintiffs  for  the  injury  to  the 
tobacco?  and,  if  so,  what  is  the  measure  of  recovery?  In  dis- 
cussing these  questions  I  shall  consider  the  subjec'  .vithout 
reference  to  the  alleged  usage  or  custom  proved  as  ..  part  of 
the  plaintiff's  case. 

According  to  a  well  known  rule  of  the  common  law,  upon  a 
sale  of  personal  property  there  is  no  implied   warranty  as  to  its 
goodness  or   quality.     The   maxim,  caveat  emptor,  applies  in 
the  absence  of  fraud   or  express  warranty.     Several  modifica- 
tions  of  this  rule  have,  however,  been  recognized  by  the  courts 
perhaps  as  well  established   as   the  rule   iisclf.     One  of  these 
is   that  upon   an   executory  contract   of   sale   where  goods  arc 
ordered  for   a  particular  use   or  purpose   k  lown  to  the  seller, 
the  latter  impliedly  undertakes  they  shall  be  reasonably  fit  for 
the  use  or  purpose  for  which  they  are  intended.     Such  a  case, 
according   to   the    authorities,   is  plainly  distinguishable  from 
that  of  an   executed  sale   of  a  specific  chattel   selected  by  the 
purchaser  upon  which  no  implied  warranty  arises.     The  dis- 
tinction seems  to  be   somewhat  refined  and  technical   at  first 
view,  but  it  is  founded  in  sound  reason,  and  is  sustained  by  the 
authorities.     Where  the  purchase   is   of  a  defined,  ascertained 
article,  the  vendor  performs  his  part  of  the  contract  by  sending 
the  article,  and  in  the  absence  of  fraud  or  some  positive  affirma- 
tion amounting  to  a  warranty  he   is  not  liable  for  any  defect  in 
the  qualitv.     The  purchaser,  in  selecting  the  particular  article, 
relies  upon  his  own  judgment,  and  takes  upon  himself  the  risk 
of  its  answering  his  purposes.     If  he  desires  to  secure  himself 


I 

I 


PERTY. 

5,  however, 
aintiffs  had 
can  be  no 
ct.  It  also 
.ifacturcr  o£ 
lateiial  and 
nd  it  is  not 
e  boxes  fur- 
see  whether 
er,  but  they 
at   it  is   his 

the  defend- 
jury   to   the 
y?      In  dis- 
jec'    .vithout 
IS   .;  part  of 

hivv,  upon  a 
mty  as  to  its 
-,  applies  in 
al  modifica- 
)y  the  courts 
)ne   of  these 
re  goods  are 
to  the  seller, 
tnably  fit  for 
Such  a  case, 
ishablc  from 
lected  by  the 
s.     The  dis- 
nical   at  first 
tained  by  the 
1,  ascertained 
:t  by  sending 
itive  affirma- 
any  defect  in 
icular  article, 
mself  the  risk 
ecure  himself 


GEUST    V.  JONES. 


64: 


against  loss  he  ought  to  require  an  express  warranty.  In  the 
absence  of  such  warranty  the  rule  of  caveat  emptor  must 
govern.  Where,  however,  the  purchaser  does  not  designate 
any  specific  article  but  orders  goods  of  a  particular  quality  or 
for  a  particular  purpose,  and  that  purpose  is  known  to  the 
seller,  the  presumption  is  the  puchaser  relies  on  the  judgment  of 
the  seller,  and  the  latter,  by  undertaking  to  furnish  the  goods 
impliedly  undertakes  they  shall  be  reasonably  fit  for  the  pur- 
pose for  which  they  are  intended,  and  he  will  be  answerable 
for  any  defect  in  the  material  or  in  the  construction  by  which 
the  value  is  diminished.  This  rule  applies  with  peculiar  force 
where  the  seller  is  the  manufacturer. 

Whether  the  seller  would  be  held  liable  for  a  latent  defect  of 
which  he  is  ignorant  and  against  which  human  skill  could  not 
provide,  is  a  question  which  does  not  arise  here  and  need  not 

be  answered. 

Numerous  cases  may  be  found  in  the  books  illustrating  these 
principles.     It  is  only  necessary,  however,  to   refer  to  two  or 
three  of  these  bearing   upon  the   question.     One  of  these  is 
Mason  v.  Chappell,  15  Gratt.  572.     There  it  appeared  that  the 
defendant  sold  to  the  plaintiff  one  hundred  an  J  fifty  barrels  of  an 
article  manufactured  by   defendant,  called  "Chappell's   Fertil- 
izer," to  be   used   on   plaintiff's  land.     The  defendant  recom- 
memled  the  fertilizer   as   a   valuable  manur;%  but  there  was  no 
warranty   and   no   allegation  of  fraud  or  deceit.     The  plaintiff, 
finding  the  alleged   fertilizer  unfit  for  use,  brought  his   action 
for  damages.     This   court  held  the  action  could  not  be  main- 
tained.    The  decision  was   placed   upon  the  ground  that  the 
transaction   was   a  sale   of   a  specific,  ascertained  article  upon 
which  there  was  no    implied  warranty,  and  the  seller  could  not 
he  held  answerable  for  a  defect  in  the  quality  in  the  absence  of 
fraud  or  an  express  warranty.     Judge  Robertson,  in  delivering 
the  opinion  of  the  court,  said:  "If  the   plaintiff,  relying  on  the 
defendant's   skill    and  judgment,  had  applied  to  him  to  furnish 
a    manure    which     would     produce     the    effect    attributed    to 
'Chappell's    Fertilizer,'  without    specifying    what    particular 
kind  of  manure  he  wanted,  and  the  defendant  had  accordingly 
furnisned    an    article  which  proved   to  be   entirely  worthless, 
there  would  be  good   ground    for   imputing   an  implied   war- 
ranty."    See,  also.   Chanter   v.    Hopkins,   4  M.    &    W.   399; 


646       MODES  OK  OBTAIMNG  TITLE  TO  PERSONAL  PROPERTY. 

Benjamin  on   Sales,  sec.   657  and  cases  cited;  Story  on  Sales, 
sec.  373;  1  Smith's  Lead  Cas. 

Tlic  case  of  Brown  v.  Edsin-ton,  2  Man.  k  Gr.  379,  is  one 
of  a  contrary  character.     There,  the  plaintiff  being  in  want  of 
a  rope  for  the  purpose  of  raisinj^   pipes  of  wine  from  his  cellar, 
the   defendant  undertook  to  supply  a  rope  for  the  purpose,  but 
furnished  a  defective  one,  an   the    plaintiff  brought   his   action 
for  the  damage  sustained  by  the  breaking  of   the   rope  and  the 
conseciuent  loss  of  a  cask  of  wine.    It  was  held  that  the  defend- 
ant was  liable  upon  the  implied  warranty.     And  where  copper 
sheathing  was   ordered  for  the  purpose  of  sheathing  a  vessel  to 
be  manufactured  by  the  seller,  and   it  proved   to  be   worthless 
for  any  such  i^iirpose,  it  was  held  that  as  the  sellers   knew  the 
purposes  to  which  it  was  to  be  applied,  a  warranty  was  impb.ed 
on  their  part  that  it  was  fit  for  the  purpose  intended.     Jones  v. 
Bright,  5  Bing.  533;  3  M"^^''^  ^^  ^'-  '55!  Story  on  Sales,  37/5. 
One  of  the  most  recent  and   best   considered   decisions    on  this 
subject  it  that  of  Jones  v.  Just,  L.  R.  3,  Q.  B.  197,  37  L.  J. 
-90       McUor,  J.,   in    delivering   the   judgment,  reviewed    the 
decisions  with  great  clearness  and  ability.   Among  other  things 
he  said  where  a  manufacturer  or  a  dealer  contracts  to  supply 
an  article  which  he  manufactures  or  produces  or  in  which   he 
deals   to  be  applied  to  a  particular  purpose,  so  that  the  buyer 
necessarilv   trusts  to  the  judgment  or  skill  of  the  manufacturer 
or  dealer,"  there  is  in  that  case  an  implied  term  of  warranty  that 
it  shall  be  reasonably  fit  for  the  purpose   to  which  it  is  to  be 
applied.     In  such  case  the  buyer  trusts  to  the  manufacturer  or 
dealer,  and  relies  upon  his  judgment   and   not  upon  his  own. 
See  Benjamin  on  Sales,  sec.  655,  and  numerous  cases   cited  in 

notes.  .      .       1       T->i 

These  principles  are  decisive  of  the  case  in  hand.  1  he 
tr-msaction  was  not  a  sale  of  an  existing  chattel  selected  by  the 
plaintiffs,  but  an  executory  contract  to  manufacture  and  deliver 
from  time  to  time,  as  they  might  be  needed,  a  number  or 
tob-icco  boxes  for  a  particular  purpose  known  to  the  defendant. 
The  defendant,  in  undertaking  to  furnish  the  boxes,  impliedly 
aereed  they  should  be  reasonably  fit  for  that  purpose.  Had 
the  plaintiffs  gone  to  the  defendant's  factory  and  themselves 
selected  certain  boxes  such  as  they  believed  would  answer 
their  purposes,  it  is  very  clear  the  defendant  would  not  be  lia- 


'ERTY. 

on  Siiles, 

179,  IS  one 
in  want  of 
his  cellar, 
irpose,  but 
his   action 
ipe  and  the 
the  defend- 
lere  copper 
a  vessel  to 
;   worthless 
3   knew  the 
k^as  implied 
Jones  V. 
Sales,  376. 
5ns    on  this 
,7,  37  L.  J. 
viewed    the 
other  things 
ts  to  supply 
n  which   he 
t  the  buyer 
lanufacturer 
arranty  that 
1  it   is  to  be 
ufacturer  or 
)n  his  own. 
ses   cited  in 

hand.  The 
ccted  by  the 
;  and  deliver 
number  01 
c  defendant. 
;s,  impliedly 
ipose.  Had 
I  themselves 
3uld  answer 
d  not  be  lia- 


GERST    V.  JONES. 


647 


h]e,  however  worthless  the  boxes  might  be,  because  the  plam- 
tiffs  in  that  case  must  have  relied  on  their  own  skill  and 
judgment  exclusively.  Hut  the  plaintiffs  made  no  selection; 
they  left  that  to  the  defendant;  they  relied  upon  his  skill  and 
iud-rment  as  a  manufacturer  to  furnish  an  article  suited  to  the 
i.ushiess  in  which  they  were  engaged.  "If,"  said  Tindall,  C. 
T  in  IJrown  v.  Ed-vington,  "the  purchaser  relies  upon  the 
judgment  of  the  seller,  and  informs  him  of  the  use  to  which 
thelirticle  is  to  be  applied,  the  transaction  carries  with  it  an 
implied  warranty  that  the  thing  furnished  shall^  be  fit  and 
proper  for  the  purpose  for  which  it  was  designed." 

It  is  no  answci  to  say  that  here  the  defendant  was  ignorant 
of  the  defect  in  the  boxes,  and  that  he  used  every  proper  pre- 
caution to  guard  against  it.  Neither  the  ignorance  of  the  seller 
nor  the  exercise  of  care  and  diligence  on  his  part  can  exempt 
him  from  liability  when  there  is  a  warranty,  whether  it  be 
express  or  implied.  In  Jones  v.  Bright,  5  King.  533,  Best,  C. 
J.,  said:  "It  is  the  duty  of  the  court  in  administering  the  law 
to'la'y  down  rules  calculated  to  prevent  fraud ;  to  prevent  per- 
sons  who  are  necessarily  ignorant  of  the  qualities  of  a  com- 
modity thev  purchase,  and  to  make  it  the  interest  of  manufac- 
turers'and  those  who  sell,  to  furnish  the  best  article  that  can  be 
supplied."  By  providing  proper  material  a  merchant  may 
guiird  ao-ainst  defects  in  manufactured  articles. 

As  a  mattei  of  fact  the  defendant  did  not  exercise  due  care 
in  the  selection  of  his  materials.  The  evidence  shows  that  red 
oik  md  white  oak  timber  was  used  in  the  manufacture  of  these 
boxes;  that  it  was  a  long  while  exposed  to  the  weather,  and 
that  red  oak  is  very  porous  and  will  absorb  much  moisture 
when  so  exposed.  These  facts,  I  think,  show  the  defendant 
did  not  give  proper  attention  to  the  preparation  of  the  timber 
for  his  boxes,  and  they  fully  explain  the  cause  of  the  damage 

to  the  tobacco. 

It  has  been  argued,  however,  that  the  plaintiffs  were  better 
judges  of  tobacco  boxes  than  the  defendant;  that  they  had 
better  opportunities  of  finding  out  the  defect  than  he  had,  and 
they  were  grossly  negligent  in  not  examining  the  boxes.  Now, 
it  is  proved  to  be  exceedingly  difficult  to  detect  moisture  m 
timber  after  it  has  been  worked  up  into  boxes.  Suitable  mate- 
rial is  not  obtained  by  merely  inspecting  the  lumber-a  very 


64S     Monns  or  onTAiN'ixr,  title  to  pehsonal  imiopeuiv. 

unsafe  test  in  any  case — but  by  properly  scasonin<j  and  prepar- 
ing it  before  it  is  converted  into  boxes.  The  defendant  as  a 
maiuifactiirer,  knows,  or  oiiylit  to  i<no\v,  what  sort  of  material 
is  suitable  for  his  business,  and  if  he  in  good  faith  can  claim 
that  the  defect  escaped  his  attention  with  what  propriety  are 
the  plaintiffs  to  be  charged  with  negligence  in  failing  to  dis- 
cover it?  In  cases  like  the  present,  the  question  is  not  whether 
the  purchaser  has  an  opportunity  of  examining  the  article,  but 
whether  he  has,  in  fact,  examined  it  for  himself,  and  whether  the 
defect  be  one  readily  discoverable  upon  inspection.  He  is  not 
bound  to  examine,  for  he  has  the  right  to  rely  upon  the  judg- 
ment of  the  seller,  and  to  take  it  for  granted  the  latter  has 
furnished  an  article  answering  the  terms  of  the  contract. 
4  Chitty  on  Contracts,  sec.  633;  Story  on  Contracts,  sec.  S34 ; 
Ralgco  V.  Miles,  11  Ohio  St.  54.  In  this  case  the  plaintiffs 
clearly  acted  upon  that  presumption,  and  they  are  not  chargea- 
ble with  uegligence  in  so  doing. 

They  have  therefore  a  right  of  action  against  the  defendant 
for  a  breach  of  warranty.  The  next  (juestion  is  as  to  the 
extent  of  their  recovery.  As  already  stated,  the  plaintiff's 
tobacco  was  damaged  to  the  extent  of  nine  cents  per  pound  by 
the  mould  resulting  from  the  use  of  unseasoned  timber  in  the 
boxes  furnished  by  defendant,  and  upon  this  estimate  the  find- 
ing of  the  jury  is  based.  It  is  insisted  that  the  defendant  can 
not  be  held  responsible  for  this  damage,  which  is  merely  con- 
sequential;  that  the  measure  of  his  liability  is  simply  the  differ- 
ence between  the  actual  value  of  the  boxes  and  what  they 
would  have  been  worth  had  they  conformed  to  the  warranty. 

Now,  it  is  easy  to  see  that  if  this  measure  of  recovery  be 
adopted,  the  plaintiffs  are  not  entitled  to  anything.  For  if  we 
look  merely  to  the  value  of  the  boxes  without  reference  to  the 
injury  to  the  tobacco,  the  plaintiffs  have  in  fact  sustained  no 
loss.  Had  they  purchased  from  the  defendant  a  machine 
intended  for  a  particular  purpose  which  proved  entirely  worth- 
less, no  diffculty  would  occur  in  ascertaining  the  difference 
between  a  good  and  a  bad  machine,  and  fixing  the  loss  accord- 
ingly. But  here,  apart  from  the  injury  to  the  tobacco,  the 
plaintiffs   have  sustained    no  damage,   because   the   boxes,    as 


^m 


•Eiirv. 

ml  piepar- 
iidiint  as  a 
)f  material 
can  claim 
iprioty  are 
ill'''  to  dis- 
ot  wlietlier 
iirticic,  Init 
whether  the 

He  is  not 

1  the  jiulg- 

latter  has 

contract. 
,  sec.  S34 ; 
e  plaintiffs 
)t  chargca- 

defendant 
as  to   the 
plaintiff's 
■  pound  by 
nber  in  the 
:e  the  find- 
endant  can 
lerely  con- 
the  differ- 
what   they 
arranty. 
:covery  be 
For  if  we 
;nce  to  the 
[Stained  no 
I    machine 
rely  worth- 
difference 
)ss  accord- 
acco,    the 
boxes,   as 


"i 


GEUST    V.  JONES. 


r.49 


made,    answered  all  the  purposes  intended  as  fully  as  if  they 
iiad  been  constructed  of  the  best  material. 

It  is  not  to  be  supposed  that  such  a  result  was  in  the  contem- 
plation of  the  parties  at  the  time  they  made  the  contract  as  the 
l)robal>le  consequence  of  its  breach.  It  is  well  settled  that  the 
jilaintiff  is  entitled,  as  a  general  rule,  to  recover  such  damages 
as  are  a  natural  and  proximate  result  of  the  wrongful  act  of  the 
defendant.  I'cshine  v.  Sheppcrson,  17  Gratt.  472,  485. 
Numerous  cases  iiold  that  in  an  executory  contract  of  sale  to 
furnish  an  article  for  a  particular  use,  if  the  article  is  not  tit  for 
such  use,  the  purchaser  is  entitled  to  indemnity  for  the  loss 
which  the  nonperformance  of  the  contract  has  occasioned  him, 
where  the  loss  is  the  natural  consequence  of  the  breach  com- 
plained of.  Thus,  in  Brown  v.  Edgington,  already  cited, 
where  the  defendant  sold  the  plaintiff  a  rope  to  be  used  in 
raising  heavy  weights,  it  was  held  that  the  plaintiff  was  entitled 
to  recover  the  value  of  the  rope  and  consequential  damages  for 
tlie  loss  of  a  cask  of  wine  falling  and  lost  from  a  defect  in  the 
rope.  The  case  of  Borradaile  v.  Hrunton,  8  Taunt.  535,  was 
an  action  for  a  breach  of  warranty  in  the  sale  of  a  chain  cable. 
Tiirough  a  defect  in  the  cable  an  anchor  of  the  plaintiff,  to 
which  it  was  attached,  was  lost.  It  was  held  that  the  plaintiff 
v.as  entitled  to  recover  the  value  as  well  of  the  lost  anchor  as 
of  the  cable.  It  is,  however,  useless  to  multiply  ci'.ations  in 
support  of  this  doctrine.  The  cases  on  this  subject  are  very 
numerous  and  may  be  found  in  Field  on  Damages,  note  to  sec. 
278;  Benjamin  on  Sales,  sec.  903,  and  notes;  Sneed  v.  Ford, 
103  Eng.  C.  L.  600;  Passinger  v.  Thorburn,  34  N.  Y.  635, 
and  the  authorities  there  cited. 

These  decisions,  and  the  principles  they  announce,  I  think 
fully  sustain  the  plaintiffs'  right  to  recover  special  damages  for 
the  injury  to  their  tobacco  as  the  natural, and  proximate  result 
of  the  defendant's  failure  to  comply  with  his  contract.  If  the 
defendant  did  not  intend  to  be  bound  by  the  rule  of  law  which 
holds  him  to  an  implied  warranty  he  ought  so  to  have  pro- 
vided, and  thus  put  the  plaintiffs  upon  their  guard. 

That  rule  (as  was  said  by  Park,  J.,  in  Jones  v.  Bright,  5 
l?ing.  533),  is  of  great  importance,  because  it  will  teach  man- 
ufacturers that  they  must  not  undersell  each  other  by  produc- 


650      MODES  OI-  OBTAINING  TITI 


li  TO  rEllSONAL  I'HOl'KllTY. 


ing  goods  of  an  inferior  quality,  and  tliat  the  law  will  protect 
purchasers  who  arc  necessarily  ignorant  of  the  commocuty  sold. 
CONSULT-Wilson  V.  Lawrence.  139  Mass.  321;  lli),'ht  v.  Hacon,  126 
Mass.  13;  Morse  v.  .Stock  Yards  Co..  21  Ore«.  289!  I'acif.c  Works  Co. 
V.  Newl.all,  34  Conn.  67;  Lewis  v.  Hountree,  79  N-  ^  122-  28  Am.  Kep. 
387;  Poland  V.  Miller,  95  I-ui.  3H7,  •!«  A'"-  ««?•  7.3";  Hsk  v.  lank,  .2 
\vis.  276,  78  Am.  Dec.  737!  «^'"r"^  ^"B-  Co.  v.  Williams,  48  Ark.  3^5; 
McClamrock  v.  Flint,  101  Ind.  278. 


§  108.    Same— Articles  sold  by  sample. 

BRADFORD  v.  MANLY. 

[13  Mass.   139;  7  Am.  Dec.  122.] 

Supreme  Judicial  Court   of  Massachusetts,  Suffolk,  March 

Term,  1816. 

Assumpsit  on  divers  special  counts,  to  recover  the  difference 
in  value   between   two  casks  of  cloves,    alleged  to  be  sold  by 
sample  to  the  plaintiff,  and  the  cloves  actually  delivered  in  vir- 
tue of  the  sale.     At  the   trial,   which   was  had  on  the  general 
issue,  before  the  chiet  justice,  at  the  la.st  November  term  in 
this  county,   the   plaintiff   produced   a  bill   of    parcels   of   6o3 
pounds  of  cloves  at  one  dollar  fifty  cents  per  pound,  on  which 
payment  was  acknowledged  by  the   defendant  to   have   been 
received  in  the  plaintiff's  note  payable  in  sixty  days.     He  then 
produced  a  witness,  who  testified  that  on  the   fourth  of  Janu- 
ary, 1S14,  the  defendant  came  to  the   plaintiff's  store,  with  a 
sample  of  cloves  in  a  paper,  and  asked  the  plaintiff  if  he  wished 
to  purchase  some  cloves.       The  witness  examined  the  sample, 
and  found   the   cloves  to  be  of  the   best  quality  of  Cayenne 
cloves;  and  the  defendant  said,  at  a  subsequent  time,  that  the 
sample  he  showed  was  of  fair  cloves.      On  the  same  day  that 
the  purchase  was  made  and  the  bill  of  parcels  given,  the  casks 
were  removed  to  the   plaintiff's  store,  the  price  being  that  of 
cloves  of  the  best  quality. 

It  was  in  evidence,  that  the  sample  was  not  taken  from  the 
casks  sold,  but  from  an  open  barrel,  out  of  which  those  casks 
had  been  tilled,  they  not  being  before  quite  full;  but  the  de- 


I'KllTY. 


BHADFOIU)    V.   MANLY. 


,vill  protect 
looity  sold. 

■.  Hacon,  126 
c  Works  Co, 
28  Am.  Kep. 
k  V.  Tank,  12 
48  Ark.  325; 


'olk^  March 


le  difference 
J  be  sold  by 
/ered  in  vir- 
the  general 
ibcr  term  in 
eels   of   6o3 
d,  on  which 
have    been 
s.     He  then 
rth  of  Janu- 
store,  with  a 
if  he  wished 
the  sample, 
of  Cayenne 
me,  that  the 
tme  day  that 
en,  the  casks 
being  that  of 

ken  from  the 
1  those  casks 
;  but  the  de- 


fendant did  not  know  from  whence  the  sample  came.     The 
market  price  of  this  article  having  fallen  immediately  alter  the 
sale,  the  plaintiff  made  no  attempt  to  sell  the  cloves;   and  the 
casks  were  not  opened   until  May,    1815,   when,   there   being 
some  application  for  the  purchase  of  them,  they  were  opened, 
and  were  found  to  contain  a  mixture  of  Cayenne  cloves  and  an 
inferior  and  distinct  species  of  the  same  article,  the  growth  of 
the  East  Indies,  in  the  proportion  of   one-third  of  the  latter, 
which  was  worth  from  a  fifth  to  a  rpiarter  less  tlian  the  former. 
Whether  the   casks  had   been   opened,  or  exposed,  or  mixed, 
while  in  possession  of   the  plaintiff,  were  questions  duly  sub- 
mitted to  the  jury.     Before  instituting  this  suit,  and  after  the 
defect  was  discovered,  the  plaintiff  offered  to  retin-n  the  cloves, 
but  the  offer  was  not  accepted.     The  defendant  objected  to  the 
admission   of    any   evidence,   other   than   the   bill    of     parcels 
(which  was  of  cloves  generally  without  designating  the  kind), 
to  prove  that  any  distinct  species  or  quality  of  the    article  was 
sold.     But  the  objection    vv;;^    jverrnled,   and  the    jury   were 
instructed  that,   although  no  fraud  was<  proved  or  suggested, 
and  no  express  warranty,   other  than  what  might  be  inferred 
from    the   exhil)ition   of    the  sample,  was  proved:   yet  if  they 
believed  from  the  evidence,  that  the  purchase  was  made  upon 
the  confidence  that  the  whole  quantity  was  represented  by  the 
sample  ;   and  that  it  was  the  intention  of  the  defendant  so  to 
represent  by  exhibiting  the  sample;   and  that  the  article,  when 
sold  and  delivered,  was  materially  different  in  quality  and  value 
from  that  which  was  shown  in  the  sample ;  they  ought  to  find 
a  verdict  for  the  plaintiff,  and  assess  in  damages  the  difference 
in  value  at  the  time  of  the  sale.     The  jury  returned  a  verdict 
for  the  plaintiff,  having  found  the  facts  specially  as  above  sta- 
ted, and  having  also  found  that  there  was  no  fraud  in  the  sale 
on  the  part  of  the  defendant.     The  defendant  excepted  against 
the  direction  of  the  judge,  and  moved  for  a  new  trial  on  that 
ground,  and  also  on  account  of  the  admission  of  parol  evidence 
to  prove  the  contract, 

Parker,  C.  J.,  delivered  the  opinion  of  the  court, — The 
first  point  taken  by  the  defendant's  counsel  is,  that  parol  evi- 
dence was  admitted,  to  control  or  explain  the  contract  in  wri- 
ting, which  subsisted  between  the  parties. 


'!^ 


6^2       MODKS  OK  OBTAINING  TITLE  TO  PERSONAL  PROrERTY, 


The  objection  goes  upon  the  supposition  that  a  common  bill 
of  parcels,  given  upo'i  or  after  the  purchase  of  goods,  is  evi- 
dence, and  the  only  proper  evidence  of  such  a  contract.  But 
it  is  not  so.  The  bargain  is  usually  ma'"e  verbally,  and  with- 
out any  intention  that  it  shall  be  put  in  writing:  and  the  bill  of 
parcels  is  intended  only  to  show  that  the  goods  have  been  pur- 
chased and  paid  for.  It  is  seldom  particular,  or  descriptive  of 
the  whole  contract  between  the  parties.  Hut  if  it  were  not  so, 
the  paper  introduced  in  this  case  is  ambiguous  with  respect  to 
the  subject  of  the  bargain;  and  the  ambiguity  is  latent,  so  that 
parol  evidence  may  be  admitted  to  explain  it.  It  states  only 
that  "  3  casks  of  cloves"  were  purchased:  leaving  it  uncertain 
what  kind  of  cloves,  of  which  it  appears  in  the  case  that  there 
are  at  least  two  kinds,  differing  materially  in  quality  and  value. 
We  think  this  objection  was  properly  overruled. 

We  may  then  come  to  the  principal  question,  viz.:  Whether 
the  evidence  in  the  cause  proved  a  contract  to  sell  cloves  of  a 
different  kinil  from  those  which  were  delivered.  The  defend- 
ant exhibited  a  samjile,  by  which  the  plaintiff  purchased. 
Among  fair  dealers  there  could  be  no  question  but  the  vendor 
intended  to  represent  that  the  article  sold  was  like  the  sample 
exhibited:  and  it  would  be  to  be  lamented,  if  the  law  should 
refuse  its  aid  to  the  party  who  had  been  deceived  in  a  purchase 
so  made. 

The  objection  is,  that  no  action  upon  a  warranty  can  be 
maintained,  unless  the  warranty  is  express;  and  that  no  other 
action  can  be  maintained,  unless  there  be  a  false  affirmation 
respecting  the  quality  of  the  article.  If  such  were  the  law,  it 
would  very  much  embarrass  the  operations  of  trade,  which  are 
fre(juently  carried  on  to  a  large  amount  by  samples  of  the  arti- 
cles bought  and  sold. 

The  authorities  cited  by  the  defendant's  counsel  have  been 
carefully  looked  into;  and  we  think  they  do  not  militate  with 
this  decision,  unless  it  be  the  c;ise  of  the  bezoar  stone, 
Chandelor  v.  Lopus,  Cro.  Jac.  4,  Dyer,  75,  which  we 
think  would  not  now  be  received  as  law  in  England:  cer- 
tainly not  in  our  country.  The  vendor  sold  the  stone  as  and 
for  a  bezoar  stone,  to  one  unacquainted  with  such  articles,  and 
it  turne^'.  out  to  be  of  inferior  value.  The  court  held  that  no 
action  would  lie ;   and  some  of  the  judges  stated  that  even  if 


:.  PROrKRTY. 

t  a  common  bill 
if  goods,  is  evi- 
u  contract.  But 
bally,  and  with- 
:  and  the  bill  of 
3  have  been  pur- 
31-  descriptive  of 
f  it  were  not  so, 

with  respect  to 
is  latent,  so  that 
It  states  only 
ving  it  uncertain 
e  case  that  there 
uality  and  value. 
1. 
,  viz. :   Whether 

sell  cloves  of  a 
1.  The  defcnd- 
ntiff  purchased, 
n  but  the  vendor 
u  like  the  sample 

the  law  should 
ed  in  a  purchase 

warranty  can  be 
id  that  no  other 
false  affirmation 
were  the  law-,  it 
trade,  which  are 
iples  of  the  arti- 

>unsel  have  been 
lot  militate  with 
2  bezoar  stone, 
75,  which  we 
a  England:  cer- 
;he  stone  as  and 
uch  articles,  and 
nrt  held  that  no 
ited  that  even  if 


■  A 


I 


;,3 


■-.'t 

-i 


rRADFORD    V.  MANLY. 


653 


t 


the  vendor  had  known  that  it  was  not  a  bezoar,  and  it  had  been 
so  alleged,  nn  action  could  not  be  maintained  without  an  ex- 
press warranty.  The  other  case  is  that  of  Parkinson  v.  Lee,  3 
East,  314.  Tlierethehops  sold  were  of  the  same  kind  and  quality 
as  tlie  sample :  but  there  was  an  unknown  deterioration  by  fer- 
mentation, caused  by  the  grower  of  the  hops,  and  not  by  the 
vendor.  Hops  being  usually  sold  in  pockets,  and  the  quality 
ascertained  by  sample,  it  was  held  that  the  innocent  vendor  was 
not  responsible  to  the  vendee,  for  an  unknown  inherent  defect, 
without  an  express  warranty.  That  case  does  not  militate  with 
our  opinion  in  the  case  at  bar. 

The  fair  import  of  the  exhibition  of  a  sample  is,  that  the 
article  proposed  to  be  sold  is  like  that  which  is  shown  as  a  par- 
cel of  the  article;  it  is  intended  to  sa/e  the  purchaser  the 
trouble  of  examining  the  whole  quantity.  It  certainly  moans 
as  much  as  this:  "  The  thing  I  offer  to  sell  is  of  the  same  kind, 
and  essentially  of  the  same  quality,  as  the  specimen  I  give 
you."  I  do  not  know  that  it  would  be  going  too  far  to  say  that 
it  amounts  to  a  declaration,  that  it  is  equally  sound  and  good. 
But  it  is  not  necessary  to  go  so  far  in  the  present  case ;  and  we 
are  not  disposed  to  question  the  correctness  of  the  decision  in 
Parkinson  v.  Lee. 

It  is  expressly  found  by  the  jury  in  the  case  at  bar,  that  the 
cloves  delivered  were  different  in  kind  from  those  which  com- 
])oscd  the  sample,  and  inferior  in  value,  not  from  decay  or 
exposure ;  but  that  there  is  a  specific  difference  in  the  respec 
tive  plants  from  which  they  are  produced.  Surely  if  a  man 
were  to  exhibit  to  me  a  parcel  of  hyson  tea  as  a  sample,  to  in- 
duce me  to  ouy  a  chest,  and  I  should  pay  him  the  price  o£ 
hyson,  and  he  should  deliver  me  a  chest  of  bohca  or  souchong, 
I  might  recover  the  difference  in  value,  if  he  should  refuse  to 
do  n^e  justice,  although  he  did  iiot  expressly  warrant  that  the 
tea  in  the  chest  was  the  eame  as  that  ift  the  sample.  Indeed, 
the  exhibition  of  a  sample  must,  in  all  fair  dealing,  stand  in 
lieu  of  a  warranty  or  affirmation.  It  is  a  silent,  symbolical 
warranty,  perfectly  understood  by  the  parties,  and  adopted  and 
used  for  the  convenience  of  trade. 

The  cpses  must  be  very  strong,  to  establish  a  principle  so 
unjust,  and  so  productive  of  distrust  and  jealousy  among 
traders,  as  that  contended  for  by  the  defendant's  counsel.     For 


654       MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

what  purpose  is  the  sample  exhibited,  unless  it  is  intended  as  a 
representative  of  the  thing  to  be  sold?  What  would  an  honor- 
able merchant  say  if,  when  he  took  from  a  mass  of  sugar  or 
coffee  a  small  parcel,  and  offered  to  sell  by  it,  the  man  who 
was  dealing  with  him,  should  ask  him  if  it  was  a  fair  sample, 
and  call  upon  him  to  warrant  it  so?  Mercantile  honor  would 
instantly  take  the  alarm ;  and  if  such  questions  should  become 
necessary,  there  would  be  no  need  of  that  honor,  which  hap- 
pily is  now  general  and  almost  universally  relied  upon.  That 
there  is  not  an  unknown  and. invisible  defect,  owing  to  natural 
causes,  or  to  previous  management  by  some  former  dealer, 
he  may  noi  be  presumed  to  affirm  when  he  shows  the  sanple  ; 
and  as  to  these  particulars  an  express  warranty  may  be  required, 
consistently  with  confidence  in  the  fair  dealing  of  the  vendor. 
But  that  the  thing  is  the  same,  generically  and  specifically,  as 
that  which  he  shows  for  it,  he  certainly  undertakes,  and  if  a 
different  thing  is  delivered,  he  does  not  perform  his  contract, 
and  must  pay  the  difference,  or  receive  the  thing  back  and  re- 
scind the  bargain,  if  it  is  offered  him. 

A  case  similar  to  this  in  principle  came  before  me  two  or 
three  years  n<yo  at  nisi  pri/is.  An  advertisement  appeared  in 
the  papers,  which  was  published  by  a  very  respectable  mercan- 
tile house,  offering  for  sale  good  Caraccas  cocoa.  The  plain- 
tiff made  a  purchase  of  a  considerable  quantity,  and  shipped  it 
to  Spain,  having  examined  it  at  the  store  before  he  p'Tchased; 
but  he  did  not  know  the  difference  between  Caraccas  and  other 
cocoa.  In  the  market  to  which  he  shipped  it,  there  was  a  con- 
siderable difference  in  value,  in  favor  of  the  Caraccas.  It  was 
proved  that  the  cocoa  was  of  the  growth  of  some  other  place, 
?'ul  that  it  was  not  worth  so  much  in  that  market.  I  held  that 
the  advertisement  was  equal  to  an  express  warranty,  and  the 
jury  gave  damages  accordingly.  The  defendants  had  eminent 
counsel,  and  they  thought  of  saving  the  question,  but  after- 
ward abandoned  it  and  suffered  judgment  to  go.  Surely  if  a 
sample  of  Caraccas  cocoa  had  been  shown  to  the  purchaser, 
and  any  other  cocoa  had  been  delivered  to  him,  the  case  would 
not  have  been  less  strong. 

We  are  all  decidedly  of  the  opinion  that  a  sale  by  sample  is 
tantamount  to  an  express  warranty   that  the  sample  is  a  true 


f'i 


A 


^PEUTV. 

iteiided  as  a 
d  an  hoiior- 
o£  sugar  or 
lie  man  who 
fair  sample, 
onor  would 
luld  become 
which  hap- 
ipon.  That 
ig  to  natural 
mer  dealer, 
the  sanple  ; 
be  required, 
the  vendor, 
ecificaily,  as 
:s,  and  if  a 
lis  contract, 
back  and  re- 

me  two  or 
appeared  in 
ible  mercan- 

The  plain- 
id  shipped  it 
!  purchased ; 
as  and  other 
e  was  a  con- 
cas.  It  was 
other  place, 

I  held  that 
mty,  and  the 
had  eminent 
m,  but  after- 

Surely  if  a 
le  purchaser, 
ff  case  would 

by  sample  is 
3le  is  a  true 


GIROUX    V.   STKDMAN. 


655 


representative  of  the  kind.     There  must,  therefore,  be  entered 
judgment  according  to  verdict. 

CoNSULT-Dickenson  v.  Gay,  7  Allen,  29,  83  Am.  Dec.  656;  Doorman 
V  Jenkins,  12  Wend.  5^^.  27  Am.  Dec.  158;  Hovd  v.  Wilson,  83  Pa.  St. 
.19,  24  Am.  Rep.  .76;  Gould  v.  Stein,  149  Mass.  570,  14  Am.  St.  Rep. 
4SS-  Pope  V.  Allis,  115  U.  S.  372;  Webster  v.  Granger,  78  111.  233; 
Ihuison  V.  Busse,  45  VA.  496;  Hargous  v.  Stone,  5  N.  Y.  85;  Harrow 
Spring  Co.  V.  Whipple  Co.,  90  Mich.  147,  3o  Am.  St.  Rep.  421. 


§  109.    Same— Articles  sold  for  food. 

GIROUX  V.  STEDMAN. 

[14s  Mass.  439.] 

Supreme  Judicial  Court  of  Massachusetts,  1888. 

Exceptions  from  surperior  court,  Hampden  county :  Pitman, 

Judge. 

These    were    actions    brought    by   Richard    Giroux,    Marx 
Giroux,  Joseph  Pecord,  and  Mary  Giroux  (by  her  next  friend), 
acrainst  Phineas  Stedman  and  anothei,  :o  recover  damages  for 
iorts  committed  by  them  in  selling  to  the   plaintiffs  pork  unfit 
for  food.     The  plaintiffs  claimed  to  have  purchased  from  the 
defendants   certain   provisions,    to   wit,    certain    quantities    of 
dressed  pork;  that  said  pork  was  tainted,  and  unfit  for  food; 
that  they  ate  of  said  pork,  and  were  made  sick  thereby.     At 
the  trial  in  the  superior  court,  the  evidence  showed  that  the 
defendants  were  farmers   carrying  on  a  farm  in  Chicopee,  and 
jointly    interested   in    raising   pigs;  that   about  the   middle  of 
September,  1S85,  the  defendants  found  that  an  infectious  dis- 
ease, known  as  "hog  cholera,"  existed  upon  their  farm,  and 
that  their  entire  herd  had  been  exposed  to  the  disease;  that  on 
October  3,    1S85,   the   defendants   killed    two   of   their    hogs, 
dressed  them,  and  sold  one  half  of  one  of  them  to  the  plaintiff 
Richard  Giroux,  and  one  half  of  the  other  hog  to  the  plaintiff 
Joseph  Pecord;  that  on  October  5  the  defendants  killed  and 
dressed  two  other  hogs,  one  of  which  was  sold  to  the  plaintiff 
Pecord.     The   evidence  showed,  further,  that,  at  the   time  of 
the  several  sales  to  the  plaintiffs,  no  representations  as  to  the 


6  =  6      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 


quality  of  the  meat  were  made,  and  no  notice  given  to  the 
plaintiffs,  at  the  times  of  the  sales,  of  the  existence  of  the  dis- 
ease among  the  herds  owned  by  the  defendants;  but  it 
appeared  that  the  defendants  knew,  at  the  time  of  the  several 
sales  to  the  several  plaintiffs,  that  the  meat  so  sold  bv  them  to 
the  plaintiff  was  to  be  used  by  the  plaintiffs  for  provisions. 
The  presiding  judge  instructed  the  jury  in  terms,  the  substance 
of  which  appears  in  the  opinion.  The  jury  returned  a  verdict 
for  the  defendants,  and  the  plaintiffs  alleged  exceptions. 

Devens,  J. — It  was  known  to  the  defendants  that  the  plain- 
tiffs purchased  the  meat  to  be  used   as   provisions,  but  it  was 
held   by  the  presiding  judge  that,    in   order  that  they  should 
recover,  they  must  prove   the  allegations   in  their   declarations 
that   the  defendants   knew    that   the    meat   sold  by  them  was 
unwholesome,   and  improper  to   be   used   as  provisions.     He 
instructed  the  jury   that,  at  common  law,  the  general   rule  is 
that  where  personal  property  is  sold  in  the  presence  of  buyer 
and  seller,  each  having  an  opportunity   to  see  the    property, 
and  there  is  nothing  said    as   to  the   quality,  the  only  implied 
warranty  on  the  part  of  the  seller  is  that  he  has  a  valid  title  in, 
or  has  a  right  to  sell,  the  chattel.     He  added  that  there  is  an 
exception   to   this    general    rule,  where  a  provision   dealer  or 
Tiarket-man    sells  provisions,  as  meat   and  vegetables,  to  his 
customers  for  use ;   and  that  in   such   case  there  would  be  an 
implied   warranty  that  they  were  fit  for  use,  and  wholesome. 
Whether  this  exception  exists  or  not  it  is  not  important,  in  the 
case  at  bar,  to  inquire,  as  it  can  not  be,  and  was  not  contended, 
that  the  defendants  were  brought  w-ithin  it.     The  contention  of 
the  plaintiffs  is  that,  even  if  the   rule  is   well  established  that 
where  there  is  no  express  warranty,  and  no  fraud,  no  warranty 
of  the  quality  of  the  thing  sold  is  implied  by  law,  and  that  the 
maxim    of   caveat    emptor    applies,    there  is  a   more    general 
exception,  which  excludes  from  its  operation  all  sales  of  pro- 
visions for  immediate  domestic  use,  no  matter  by  whom  made. 
That  in  a  sale  of  an  animal  by  one  dealer  to    another,  even 
with  the  knowledge  that  the  latter  dealer  intends   to   convert  it 
into  meat  for  domestic  use,  or  that,  in  the  sale  of  provisions  in 
the   course   of   commercial    transactions,   there   is   no    implied 
warranty  of  the  quality,  appears  to  be  well  settled.     Howard 


-f 

4 


)PERTY. 

iven  to  the 
;  of  the  dis- 
its ;    but    it 

the  several 
I  bv  them  to 

provisions, 
le  substance 
ed  a  verdict 
tions. 

at  the  plain- 
s,  but  it  was 
they  should 
declarations 
y  them  was 
visions.     He 
leral   rule  is 
ice  of  buyer 
le    property, 
only  implied 
;alid  title  in, 
there  is  an 
)n   dealer  or 
ables,  to  his 
vould  be  an 
wholesome, 
artant,  in  the 
it  contended, 
:ontention  of 
ablished  that 
no  warranty 
and  that  the 
nore    general 
sales  of  pro- 
whom  made, 
nother,  even 
to   convert  it 
provisions  in 
>   no    implied 
id.     Howard 


GIROUX    V.   STEDMAN. 


657 


v.    Emerson,    110   Mass.    320,    and    cases    cited;    Burnby   v. 
Hoilett,  16  Mecs.  &  W.  645. 

While    occasional    expressions    may    be    found    (as    in   Van 
Hracklin  v.  Fonda,  12  Johns.  468)  which  sustain  the  plaintiffs' 
contention,  we  have  found  but  one  decided   case   which   sup- 
ports it.     In  Van  Bracklin  v.  Fonda,  ubi  supra,  it  is  said  that, 
ill  a  sale  of  provisions,  the  vendor  is  bound  to  know  that  they 
are  sound  at  his  peril;  but  the  case  shows  that  the  defendant, 
who  had  sold   beef  for  domestic  use,  knew  the   animal   from 
wliich  it  came  to  be  diseased.     This  had  been  found  by  the 
iiiry,   and    the    remark    is   made  in   connection  with    the  facts 
jiioved.     The    case  of  Hoover  v.   Peters,    iS  Mich.   51,   does 
sustain  the  plaintiffs'  contention,  as  it  is  there  held  that  where 
articles  of  food  are  bought  for  domestic  consumption,  and  the 
vendor  sells  them  for  that  express  purpose,  the  law   implies  a 
warranty  that  they  are  fit  for  such  purpose,  whether  the   sale 
he  made  by  a  retail  dealer  or  by  any  other  person.     This  case 
imposes  a  heavier  liability  on  a  person  not  engaged  in  the  sale 
of  provisions  as  a  business  than  he  should  be  called  on  to  bear. 
The  opinion  is  not  supported   by   any   citation   of  authorities. 
In   a  dissenting  opinion  by  Mr.  Justice  Christiancy,  it  is  said : 
"Had  it  appeared  that  he  [the  defendant]  was  the  keeper  of  a 
meat  market  or  butcher  shop,  and  was  engaged  in  the  business 
ot  selling  meat  for  food,  and,  therefore,  bound  or  presumed  to 
know  whether  it  was   fit  for  that  purpose,  I  should  have  con- 
curred in  the  opinion  my  brethren  have  expressed."     If  there 
is  an  exception  to  the  rule  of  caveat  emptor  which  grows  out 
of  the  circumstances  of  the   case,  and   the  relations  of  buyer 
and  seller,  where  the  latter  is  a  general  dealer,  and  the  former 
a  purchaser  for  immediate  use,  there   appears  no  reason  why  i% 
sliould  be  further  extended. 

In  the  case  at  bar,  the  defendants  were  not  common  dealers 
in  provisions,  or  market-men.  They  were  farmers,  selling  a 
portion  of  the  produce  of  their  farms.  No  representations  of 
the  quality  of  the  meat  sold  were  made  by  them.  In  making 
casual  sales  from  a  farm  of  its  products,  to  hold  the  owner  to 
the  duty  of  ascertaining,  at  his  peril,  the  condition  of  the 
articles  sold,  and  of  implieciiy  warranting,  if  sold  with  the 
siiowledge  that  they  are  to  be  used  as  food,  that  they  are  fit  for 
42 


65S       MODES  OF  ORTAINING  TITLE  TO  PERSONAL  PROPERTY. 

the  purpose,  imposes  a  larKcr  liability  than  should  be  placed 
upon  one  who  mav  often  have  no  better  means  of  knowledn;e 
than  the  purchaser.      The   plaintiffs  contend    that  the   case  of 
French   v.  Vinins;,  103    Mass.  13.^,  is   decisive   in   their  lavor, 
but  it  appears  to  us  otherwise.     In    that  case,  the  defendant 
sold  hay,  which  lie  knew  had  been   poisoned,  for  the  purpose 
of  beintr  fed  to  a  cow,  although  he  had  carefully  endeavored  to 
separate  the  damaged  portion   from   the  rest,  and  supposed  he 
had  succeeded.     From   the   effects  of  eating  the  hay  the  cow 
ditJ,  and  the  defendant  was  held   liable.     His   knowledge  of 
the  injurv  to  the  liay  was  certain   and  positive ;   his  belief  that 
he  had  remedied  the  difViculty  was  conjectural   and  uncertain, 
and  proved  to  be  wholly  erroneous.     In  the  case  at  bar,  while 
the  defendant's  herd  had  been   exposed  to  hog  cholera,  there 
was  evidence  that  a  portion  of  it  only  had  been  affected;   and, 
further,  that,  even  if  affected,   the  meat  of  the   animals    was 
not  necessarily  unwholesome.     There  was  no   evidence  that 
the  animals  whose    meat  was  sold  had  ever,  so  far  as  the  de- 
fendants knew,  actually  had  the  disease,  and  the  verdict  of  the 
jury  has  established  that  they  were  ignorant  that  the  meat  sold 
by  "them  was   unwholesome.     In  French  v.  Vining  the  defend- 
ant knew  what  the  condition  of  the  hay  had  been,  and  this  is  a 
vital  part  of  the  case.     He  sold   an   article  which  he  knew  had 
been  poisoned,  and    from  which    he    had    taken   no   effectual 
means  to  remove  the   poison.     His  belief  or  supposition  that 
his  effort  had  been  successful  could  not  relieve  him  from  lia- 
bility for  the  consequences   that  ensued  because   it  had  been 
unsuccessful,    if  he  sold  the  hay  without  informing   the  pur- 
chaser  of  the  dangerous  injury  which  it  had  received.     Excep- 
tions overruled. 

CoKsiiT— V.in  Bracklin  v.  Fonda,  12  Johns.  468,  7  Am.  Dec.  339; 
Sinclair  v.  Hathawav,  57  Mich.  60,  58  Am.  Rep.  3.7;  Copasv.  Provision 
Co  73  Midi.  541 ;  Hoover  v.  Peters,  iS  Mich.  51 ;  Moorehouse  v.  Com- 
stoc'k,  42  Wis.' 626;  Moses  v.  Mead,  i  Denio,  37S,  43  Am.  Dec.  676; 
Enerson  v.  Brigliam,  10  Mass.  177,  6  Am.  Dec.  167 ;  Howard  v.  Emerson, 
no  Mass.  320,  14  Am.  Rep.  60S;  iNeedham  v.  Dial,  4  Tex.  Civ.  App. 
141;  Fairhank  Canning  Co.  v.  MeUgar,  118  N.  Y.  2fx3,  16  Am.  bt.  Rep. 
753;  Ryder  v.  Neitge..  21  Minn.  70;  Best  v.  Flint,  58  Vt.  543*  5^  Am. 
Rep.  570. 


I 


Mi 


IPERTY. 

d  be  placed 
knowledge 
the   case  of 
their  iavor, 
ic  'lefendaiit 
the   purpose 
uleavorcd  to 
supposed  he 
[lay  the  cow 
nowk-dge  of 
3  belief  that 
d  uncertain, 
It  bar,  while 
holera,  there 
■fccted;   and, 
animals    was 
vidence  that 
ar  as  the  de- 
,'crdict  of  the 
the  meat  sold 
r  the  defcnd- 
and  this  is  a 
he  knew  had 
no   effectual 
jposition  that 
lim  from  ba- 
it had  been 
ling  the  pur- 
ved.     Excep- 


Ain.  Dec.  339; 
pasv.  Provision 
ehouse  v.  Corn- 
Am.  Dec.  676; 
ard  V.  Emerson, 
Tex.  Civ.  App. 
16  Am.  St.  Rep. 
Vt.  543,  56  Am. 


S 


I 


MODES  OF  OBTAIXIXG  TITLE  TO  IMiKSONAL  PKOl'KRTV.       659 

J.      The  rcrforviancc  of  the.   Contract  of  Sale. 
§  110.    Mutual  conditions  precedent. 

See  I'aul  v.  Rccd,  ante,  p.  .lS6. 


§  111.    Place  of  delivery. 

JANNEY  V.  SLEEPER. 

[30  Minn,  ico.] 

Supreme  Court  of  Minnesota,  1883. 

MiTCHEM-,     J.— The    plaintiffs    were    hardware    merchants 
whose  residence   and   place    of    business  was   in  Minneapolis. 
The  defendant  resided   at  Brainerd.     The   plaintiffs,   at  their 
place  of  business  in  Minneapolis,  agreed  to  sell  and  deliver  to 
defendant  a  quantity  of  glass.     At  the  time  of  making  the  con- 
tract plaintiffs  did  not  have   the   goods   on   hand    in   stock,  but 
had  to  purchase  them  in  St.  Louis  in  order  to  meet  their  con- 
tract.    The  evidence  as  to  the  place  where  the  goods  were  to 
be  delivered  to  defendant  was  conlbcting;   that  on  the  part  of 
plaintiffs  tending  to  prove  that  they  were   to  be  delivered  in 
Minneapolis  on  the  cars,  while  that  on  the  part  of  defendant 
tended  to  prove  that  the  goods  were  to  be  delivered  at  Brain- 
erd.    The  court  under  the  objection  and  exception  of  defend- 
ant, instructed  the  jury  "that  the   burden   of  proof  was  upon 
defendant  to  show  by   a   preponderance   of  testimony  that  the 
glass  was  to  be  delivered  to   him  at   Brainerd   and  not  on  the 
cars  at  Minneapolis,  as  claimed  by  the  plaintiffs."     We  see  no 
error  in  this.     If  no   place  be  designated   by  the  contract  the 
general  rule  is  that  the  articles  sold  are  to  be  delivered  where 
they  are  at  the  time  of  sale.     The  store  of  the  merchant,  the 
shop  of  the  manufacturer,  and  the  farm  of  the  farmer  at  which 
the  commodities  sold  are  deposited  or  kept,  must  be  the  place 
of  delivery  when  the  contract   is  silent  upon   the   subject ;  at 
least  when  there  are  no  circumstances  showing  that  a  different 
place  was  intended.     This  is  a  rule  of  construction  predicated 


66o      MODES  OF  OBTAINING  TITLE  TO  PEHSONAL  PROPERTY. 

upon  the  presumed  understiinding  of  the  parties  when  making 
the  contract.  Benj.  Sales,  loiS,  io23;  3  Chit.  Cent.  1201, 
1203;  3  Kent,  Comm.  505;  Middlesex  Co.  v.  Osgood,  4 
Gray,  447;  Smith  v.  Gillett,  50  111.  390;  Hamilton  v.  Cal- 
houn, 3  Watts,  139;  LobdcU  V.  Hopkins,  5  Cow.  516;  Rice 
V,  Churchill,  3  Denio,  145;  Wilmouth  v.  Patton,  2  Bibb.  3S0; 
Li.nsley  v.  Burns,  10  Bush,  87. 

This  rule  is  not  changed  by  the  fact  that  plaintiffs  did  not 
have  the  goods  on  hand  at  their  place  of  business  at  the  time  of 
the  sale,  but  had  to  procure  them  elsewhere  in  order  to  fulrtll 
their  contract.  Potentially  and  prospectively  the  goods  were 
as  if  then  situate  in  their  store  at  Minneapolis.  Hence  in  the 
absence  of  any  evidence  as  to  the  place  of  delivery  it  would  be 
presumed  to  be  at  Minneapolis.  To  overcome  this  presump- 
tion some  evidence  would  be  required  tending  to  show  that 
some  other  place  was  agreed  upon.  This  was  in  effect  all  that 
the  language  of  the  court  implied  when  he  instructed  the  jury 
that  the  burden  of  proof  was  upon  defendant  to  show  that  the 
goods  were  to  be  delivered  at  Brainerd  and  not  Minneapolis. 

In  view  of  their  verdict  the  jury  must  necessarily  have  found 
against  defendant  upon  those  issues  upon  which  depended  his 
right  to  recover  any  damages  at  all.  Therefore  it  is  unneces- 
sary to  consider  whether  the  court  erred  in  his  rulings  as  to  the 
measure  of  damages.  One  or  two  other  exceptions  were  taken 
to  the  rulings  of  the  court  below  upon  the  trial  which  we  have 
examined,  but  find  no  error.  They  are  not,  however,  in  our 
opinion,  of  suilicient  importance  to  require  to  be  here  consid- 
ered at  length. 

Judgment  affirmed. 

CoNSLLT— Kraft  V.  Hurtz,  11  Mo.  109;  Gray  v.  Walton,  107  N.  Y. 
254;  Woods  V.  Dial,  12  111.  73;  Smith  v.  Wheeler,  7  Ore.  49,  33  Am. 
Rep.  69S;  Smith  V.  Gillett,  50  111.  290;  Lucas  v.  Nichols,  5  Gray,  309; 
Wood  V.  Manly,  11  Ad.  &  Ell.  143. 


mm 


EUTY. 


MODES  Ol-  OIITAIMNO  TITLE  TO  I'EIISUNAL  I'UOI'EIITV.       06 1 


n  making 
nt.    I20I, 

ISfJOOtl,     4 

)ii  V.  Ciil- 
, i6;  Rice 
;ibb.  2S0; 

's  did  not 
he  time  of 
to  fulfill 
Dods  were 
nee  in  the 
would  be 
presump- 
show  that 
ict  all  that 
d  the  jury 
V  that  the 
eapolis. 
lave  found 
lended  hi& 
5  unneces- 
s  as  to  the 
,vere  taken 
h  we  have 
er,  in  our 
Me  consid- 

t  affirmed. 

1,  107  N.  Y. 

49.  33  Am. 

;  Gray,  309; 


§  112.    Delivery  to  carrier. 

MAGRUDER  v.  GAGE. 

[33  Md.  344;  3  Am.  Rep.  177-] 

CouH  of  Appeals  of  yfarylaud,  i8^0. 

RoniNsnx,  J.— The  appellants,  residents  of  Annapolis, 
wrote  to  the  appellees,  ice  dealers,  in  Hoston,  to  know  upon 
what  terms  they  would  sell  them  a  cargo  of  ice,  in  answer  to 
which  they  received  the  following  reply: 

"For  a'cargo  to  be  shipped  before  the  tenth  of  July  we  shall 
charge  you  $5  per  ton,  and  will  get  the  freight  as  low  as  pos- 
sible." 

By  letter  of  July  i,  1S63,  the  appellants  directed  the  appel- 
lees to  send  a  cargo  of  one  hundred  and  fifty  tons,  and  author- 
ized  them  to  get  the  freight  as  low  as  possible.  On  the 
thirteenth  of  July  the  appellees  wrote  to  the  appellants  advising 
them  of  the  shipment,  inclosing  account  for  same,  and  the  bill 
of  lading.  This  letter  with  the  inclosed  papers  was  received 
by  the  appellants  in  due  course  of  mail.  By  the  bill  of  'ading 
it  appears  that  the  ice  was  shipped  in  good  order  and  condition 
on  board  of  the  schooner  Rio,  lying  in  the  port  of  Boston,  and 
bound  for  Annapolis  to  be  delivered  in  like  good  order  and 
condition  to  the  appellants,  or  to  their  assigns,  he  or  they  pay- 
ing the  freight  and  accustomed  average. 

The  schooner  encountered  rough  weather,  and  was  com- 
pelled to  put  into  New  York  with  damaged  sails.  After  refit- 
ting she  resumed  her  voyage  and  reached  Norfolk  on  the 
eighteenth  of  August  in  a  sinking  condition.  The  remnant  of 
he"  cargo  was  sold  under  the  captain's  supervision,  and  the 
surplus  arising  from  the  proceeds  of  sale,  after  the  payment  of 
freight  and  charges  amounting  to  $222,  was  handed  over  to 
the  Appellants,  and  by  them  remitted  to  the  appellees,  who 
refused  to  receive  the  same.  This  is  an  action  of  contract 
brought  by  them  against  the  appellants  to  recover  the  value  o£ 
the  cargo  of  ice. 


66Z       MODES  OF  OnTAINMNG  TITt.K  TO  riCKSON'AI.   I'KOl'K UT Y. 

The  main  question  in  ll.is  appeal,  and  one  wliich  we  tliink 
decisive  of  the  case,  arises  upon  the  following  prayer,  granted 

1)V  the  court:  . 

'"If  tlie  jury  find  from  the  evidence  that  the  phnntiffs  u;  iSOj 
xvcre  partners  in  trade  and  dealers  in  ice,  under   the  name  and 
firm  of  Addison,  (ia-e  ."v:  Company,  in  the  city  of  Hoston,  Mas- 
sachusetts, and  tliat  tlRMJefendants  were  tradin- under  the  name 
of  Ma<nuder  .^^  Hrother,  in  the  city  of  Annapolis,  on  the  third  of 
Tunc, In  the  year  186:;,  and  as  such  firm  wrote  to  the  plaintiffs 
the  letter  offered  in  evidence  of  that  date,  and  proved  under  the 
commission  as  exhibit  E,  and  that  the  plaintiffs  ir.  reply  thereto 
wrote  to  the  defendants  the  letter  dated  June  twenty-second, 
proved  under  the  commission  as  exhibit  11,  and  that  on  the  first 
of   July   the   defendant  addressed    to    the    plaintiffs  the  letter 
returned  with  the  commission  and  marked  A,  and  that  on  the 
sixth  of  July  the  plaintiffs  wrote  to  the  defendants  the  letter  of 
that  date  marked  B,  and  that  these  letters   were  received  by  the 
persons  to  whom  thev  were  respectively  addressed,  and  that  the 
plaintiffs  did,  on  the  eleventh  of  July,    1S63,  ship  on  board  the 
schooner  Rio,  one  hundred  and  fifty  tons  of  ice,  at  and  from 
the  port  of  r.oston  to  Annapolis,  consigned  to  the  defendants, 
and   that  the   said  schooner  sailed  on   her  said  voyage  on  the 
eleventh  of  July,  1S63,  and  that  the  plaintiffs  sent  by  the  mail  of 
the  thirteenth  of  July,  1S63,  to  the  defendants,  the  bill  of  ladmg 
and  invoice  of  said  shipment,  marked  F  and  G,  and  that  these 
were  received  by  the  defendants  in  due  course  of  mad,  and  that 
the  plaintiffs  made  no  other  agreement  in  reference  to  the  sale 
and  delivery  of  said  ice  than  is  shown  by  the  said  letters,  bdl 
of  lading,  and  invoice,  then  the  plaintiffs  are  entitled  to  recover 
the  value  thereof  of  said  ice,  after  deducting  any  amount  which 
the  jury  may  find  to  have  been  paid  to  plaintiffs." 

This  prayer  asserts  as  a  proposition  of  law  that  the  facts 
therein  stated,  in  the  absence  of  any  other  agreement  on  the  part 
of  the  plaintiffs  in  regard  to  the  delivery  of  the  ice,  constituted 
a  complete  sale  and  delivery  of  the  same  to  the  defendants. 

The  question  as  to  what  acts  are  necessary  to  be  performed 
by  a  vendor  under  an  executory  agreement  for  the  sale  of 
unsoecified  goods  in  order  to  transfer  the  title  to  the  vendee 
and  subject  him  to  the  risk  of  the  carriage  depends  entirely 
upon  the   agreement,  either  express  or   implied,    between    the 


U'KllTV. 

.Ii  we  tliink 
,er,  giantcil 

tiffs  ir.  iS6j 
e  iiiimc  ami 
iostoii,  Mas- 
Icr  llie  name 
1  the  third  of 
he  plaintiffs 
l;cI  under  the 
eply  thereto 
enty-second, 
it  on  the  first 
fs  the  letter 
1  that  on  the 
the  letter  of 
:eived  by  the 

and  that  the 

3n  board  the 

at  and  from 

defendants, 
oyagc  on  the 
)y  the  mail  of 
bill  of  lading 
id  that  these 
lail,  and  that 
:e  to  the  sale 
:1  letters,  bill 
ed  to  recover 
imount  which 

that  the  facts 
nt  on  the  part 
e,  constituted 
efendants. 
be  performed 
r  the  sale  of 
to  the  vendee 
»ends  entirely 
between    the 


MAOHUUKIt    V.    GAGE. 


663 


parlies.  If  the  vendor  undertakes  to  make  tlie  delivery  him- 
self at  a  distant  place,  thus  assuming  the  risk  in  the  carriage, 
tile  earlier  Ikhouics  the  agent  of  the  vendor,  and  (lie  pr(.perty 
will  not  pass  until  the  delivoi y  is  actually  made.  On  the  other 
hand,  if  t!ie  goods  are  delivered  to  a  carrier  specially  designated 
by  the  purchaser,  he  becomes  the  agent  of  the  latter  and  the 
title  to  the  property,  as  a  general  rule,  will  pass  the  moment  the 
goods  are  dispatched.  .Should  the  contract  of  purchase  be 
silent  as  to  the  person  or  mode  by  which  the  goods  are  to  l-^ 
sent,  a  delivery  by  tlv  vendor  to  a  common  carrier  in  the  usual 
an<l  ordinary  course  of  business  transfers  the  property  to  the 
vendee,  or,  as  Mr.  Mcnjamin  expresses  it  in  his  late  treatise  on 
Sales,  "where  goods  are  delivered  by  the  vendor  in  pursuance 
of  an  order  to  a  common  carrier,  for  delivery  to  the  buyer,  the 
delivery  to  the  carrier  passes  the  property,  he  being  tlie  agent 
of  the  vendee  to  receive  it  and  the  delivery  to  him  being  equiv- 
alent to  a  delivery  to  the  vendee."  Benjamin  on  .Sales,  288. 
So  early  as  the  case  of  Datton  v.  Solomon,  3  B.  &  P.  582, 
Lord  Alvanley  said  he  considered  it  a  settled  law  "that  if  a 
purchaser  order  goods  to  be  sent  by  a  carrier,  though  he  docs 
not  name  any  particular  carrier,  the  moment  the  goods  are 
delivered  to  a  carrier  it  operates  as  a  delivery  to  the  purchaser." 
It  is  unnecessary  to  cite  authorities  in  support  of  this  well- 
established  rule.  The  cases  are  collected  and  reviewed  in  a 
very  satisfactory  manner  in  Benjamin  on  Sales,  246-271,  and 
the  rule  will  be  found  recognized  in  its  broadest  terms  by  all  of 
the  elementary  writers  on  the  subject.  Story  on  Sales,  .,ec. 
306;  Hill  on  Soles,  top  p.  119;  Chitty  on  Con. 

If,  therefore,  in  this  case,  the  appellants  directed  the  appel- 
lees to  send  them  a  cargo  of  ice,  and  they  delivered  it  to  a 
common  carrier  to  be  freighted  for  and  on  account  of  the 
appellants,  and  there  was  no  other  agreement  in  regard  to  the 
sale  and  delivery  of  the  same,  the  court;  was  right  in  saying  to 
the  jury  that  the  title  passed  to  the  appellants,  and  that  the 
appellees  were  entitled  to  recover. 

None  of  the  cases  relied  on  by  the  appellants  are  in  conflict 
with  these  views.  In  Dunlop  v.  Lambert,  6  Clark  &  Fin.  600, 
the  suit  was  brought  by  the  consignor  against  the  carrier  to 
recover  for  the  loss  of   the  goods,  and  it  was  decided  that, 


664     Moi'i;^  <>i'  uinAiMNci  irn.K  lo  j'EUsonai.  imkipkh  iy. 


althoii<,'!i.  as  a  Rem-ral  nilo,  wlicn'  (ho  jjooils  are  dolivcrcd  to  a 
carrier,  tlic  ct)iiNi;^ucc  is  tlic  proper  person  to  l)riii;;  the  action 
ji{,'aiiist  the  earner,  yet  if  tlie  consignor  makes  a  special  roii- 
tract  witli  the  hitter  for  the  carriajje,  siich  a  contract  supersedes 
the  necessity  of  siiowinij  tiie  ownership  in  the  {joods,  and  tiie 
consijjnor  may  maintain  tiie  action  a^ain^t  tiie  carrier,  tlionj^li 
the  goods  may  liave  l)eeii  the  property  of  tiie  cousi',Miee.  Tlie 
Lord  Chancelh)r,  however,  said:  "It  is  no  donlit  true,  as  a 
jjeneral  rule,  that  the  delivery  by  the  consignor  to  the  carrier  is 
a  delivery  to  tlie  consi^rnee,  and  that  the  risk  is,  after  such 
delivery,  ihe  risk  of  the  consignee.  This  is  so  if,  without 
designatingthe  particular  carrier,  the  consignee  directs  the  goods 
shall  he  sent  by  the  ordinary  conveyance;  the  delivery  to  the 
ordinary  carrier  is  then  a  delivery  to  the  consignee,  and  the 
consignee  incurs  all  the  risk  of  the  carriage."  In  that  case 
evidence  was  offered  that,  by  the  terms  of  the  contract,  the 
seller  was  to  deliver  the  puncheon  on  the  ([uay  at  Ncwcastlc-on- 
Tyne  before  the  title  was  to  pass  to  the  purchaser;  and  it  was 
held  that  the  lord  president  in  the  trial  below  erred  in  stating  it 
as  a  rule  without  an  exception  because  the  freight  and  insur- 
ance were  paid  by  the  consignor  who  charged  the  consignee 
with  their  amount,  the  risk  was,  therefore,  necessarily  witii  the 
consignee — that  there  was  consequently  no  right  to  inquire 
what  was  the  particular  transaction  between  the  parties.  In 
other  words,  the  court  below  had  erred  in  excluding  from  the 
jury  the  agreement  between  the  parties  in  regard  to  the  delivery 
of  the  puncheon. 

But  no  such  objection  can  be  urged  against  the  prayer  of  the 
court  in  this  case.  The  question  as  to  whether  there  was  any 
other  agreement  between  the  appellants  and  appellees  in 
regard  to  the  sale  and  delivery  of  the  ice  than  that  to  be  found 
in  the  correspondence  and  bill  of  lading  was  fairly  submitted 
to  the  jury  and  the  plaintiff's  right  to  recover  upon  the  finding 
of  the  facts  set  forth  in  the  prayer  was  based  upon  the  express 
proviso  that  there  was  no  other  agreement  in  regard  to  the 
delivery  of  the  ice. 

In  Blanchard  v.  Page,  8  Gray-  2S1,  the  action  was  also 
brought  by  the  consignor  against  the  carrier  upon  a  special 
contract,  and  the  precise  question  in  the  case,  says  Shaw,  C. 
J.,  is  "whether  the  plaintiffs  named  as  shippers  of  the  goods  in 


[■  1 


il'Ell  lY. 

livorcd  to  a 

the  act  ion 
pccial   roii- 

•iuporsedes 
(Is,  and  till' 
icr,  tliou}ili 
^iiee.  Tlic 
t  true,  as  a 
ic  carrier  is 

after  such 
if,  without 
ts  tlie  jjoods 
ivcry  to  the 
ce,  and  the 
n  that  case 
Dntract,  the 
wcastlc-on- 

and  it  was 
in  statin<j  it 

and  insur- 
c  consifjnce 
ily  witli  the 

to  inquire 
parties.  In 
ig  from  the 
the  delivery 

rayer  of  the 
ere  was  any 
ppellees  in 
to  be  found 
y  submitted 
the  finding 
the  express 
jgard  to  the 


MA(;ia  i)i;a  v.  (lAt.K. 


r.r.5 


the  bill  of  lading,  may  maintain  an  action  for  damages  done  to 
tlie  goods  after  they  were  receivetl  by  the  defendants  at  tlie  sliip 
for  the  purpose  of  carriage,  and  before  they  were  delivered  to 
and  received  by  the  consignees  at  New  Orleans  named  in  the 
liiil  of  lading,  although  it  is  shown  by  evidence  a/iuiii/f  that  the 
])lainliffs  had  no  right  of  i)r()perty,  general  or  special,  in  the 
goods  and  no  other  right  or  interest  in  their  safe  carriage  except 
tliat  arising  from  the  hill  of  lading."  It  was  held  that  the  coii- 
signor  could  maintain  the  action  upon  the  special  contract  for 
the  carriage  of  the  goods  although  the  court  admitted  that  the 
delivery  of  them  to  a  common  carrier  vested  the  general  prop- 
erty in  the  purchaser. 

Exceptions  to  the  general  ndc  as  above  stated,  it  is  true,  are 
to  be  found  arising  in  cases  where  by  the  express  terms  of  the 
bill  of  lading  the  goods  are  to  be  delivered  to  the  consignor  or 
his  assigns  or  where  there  is  some  other  evidence  showing  the 
intention  of  the  consignor  to  retain  the  property,  notwithstand- 
ing the  delivery  to  the  carrier.  This  is  frequently  done  where 
the  parties  living  at  a  distance  from  each  other  contract  by 
correspondence,  and  where  the  vendor  is  desirous  of  securing 
himself  against  the  insolvency  or  default  of  the  buyer.  The 
cases  of  Warle  v.  Baker,  2  Ex.  i ;  Jenkyns  v.  Brown,  14  Q. 
H.  496,  and  Ellershaw  v.  Maginac,  6  Ex.  570,  were  decided 
upoi\  this  principle. 

The  decision  of  the  law  arising  upon  this  prayer  makes  it 
unnecessary  to  consider  the  other  exceptions  relied  on  by  the 
appellants. 

Finding  no  error  in  the  ruling  below,  the  judgment  will  be 
atlirmed. 

Judgment  affirmed. 

Consult— Wheelhouse  V.  Parr,  141  Mass.  593;  Hallidayv.  Hamilton, 
II  Wall.  150;  Kribs  v.  Jones,  44  Md.  396;  Devine  v.  Edwards,  loi 
111.  138;  Leggatt  V.  Sands,  60  111.  15S;  Gafes  v.  Packing  Co.,  yS  Cai. 
439;  Woodruff  V.  Noyes,  15  Conn.  335;  Garrattson  v.  Selby,  37  la.  529. 


on  was  also 
n  a  special 
ys  Shaw,  C. 
the  goods  in 


666 


MODES  OF  OBTAINING  TITLE  TO  PEKSONAI.  PROPERTY 


§  113.    Delivery  of  right  quantity-Successive  deliveries. 
NORRINGTON  v.  WRIGHT. 

[115  U.  S.  i8S.] 

Supreme  Court  ^f  the  United  States,  iSSj. 

In  error  to  the   circuit   court   of   the  United   States  for  the 
eastern  district  of  Pennsylvania. 

The  facts   fully   appear  in  the  following  statement  by  Mr. 

^"Thit  wl?an  action  of  assumpsit,  brought  by  Arthur  Nor- 
rin<non.  a  citizen  of  Great  Britain,  trading  under  the  name  of  A. 
Nonington  &  Company,  against  James  A.  Wright  and  others, 
ciii/ens  of  Pennsvlvania,    trading   under   the    name  of  Peter 
WriRht  &  Sons,  upon  the  following  contract:      "Philadelphia, 
Janu  uv  19,  iSSo.     Sold  to  Messrs.  Peter  Wright  Sc  Sons,  for 
account  of  A.  NorriPgton  .S.   Company,  London:     Five  thou- 
sand ( =;  ooo)  tons  old  T  iron  rails,  for  shipment  from  a  European 
nort  or  ports,  at  the  rate  of   about    one  thousand    (i, ooo)  tons 
per  month,  beginning  February,    i88o,  but  whole  contract  to 
be    shipped   before     August     i,     iSSo,     at    forty-five    dollars 
r$A-.  oo^  per  ton  of  two  thousand,  two  hundred  and  forty  pounds 
custom-house  weight,  ex  ship   Philadelphia.     Settlement,  cash, 
on  presentation  of  bills  accompanied  by  custom-house  certificate 
of  weight.     Sellers  to  notify  buyers  of  shipments  with  vessels 
names^as  soon  as  known  by  them.     Sellers  not  to  be  compelled 
to  replace  anv  parcel  lost  after  shipment.     Sellers,^  when  pos- 
sible, to  secui'e  to  buyers  right  to  name  discharging  berth  of 
vessels  at  Philadelphia.     Edward  J.  Etting,  Metal  Broker. 

The  declaration  contained  three  counts.  The  first  count 
alleged  the  contract  to  have  been  fo.  the  sale  of  about  five  thou- 
l.„d  tons  of  T  iron  rails,  to  be  shipped  at  the  rate  of  about  one 
thousand  tons  a  month,  beginning  in  February,  and  ending  in 
Julv  iSSo.  The  second  count  set  for^h  the  contract  verbatim. 
Eich  of  these  two  counts  alleged  that  the  plaintiffs  in  February, 
M'arch,  April,  May,  June,  and  July  shipped  the  goods  at  the  rate 
of  about  one  thousand  tons  a  month,  and  notified  the  shipments 
to  the  defendants;   and  further  alleged  the  due  arrival  of  the 


L  PROFERTV. 


live  deliveries. 

r. 

's,  i88s. 

d   States  for  the 

statement  by  Mr. 

by  Arthur  Ncr- 
ler  the  name  of  A. 
V^right  and  others, 
e  name  of  Peter 
:  "Philadelphia, 
/■right  k  Sons,  for 
idon:  Five  thou- 
itfrom  a  European 
sand  (i,ooo)  tons 
whole  contract  to 

forty-five  dollars 
;d  and  forty  pounds 
Settlement,  cash, 
ni-house  certificate 
nents  with  vessels' 
lot  to  be  compelled 
sellers,  when  pos- 
scharging  berth  of 

Metal  Broker." 
I.     The  first  count 

of  about  five  thou- 
le  rate  of  about  one 
Liary,  and  ending  in 
:  contract  verbatim, 
aintiffs  in  February, 
:he  goods  at  the  rate 
)tified  the  shipments 
;  due  arrival  of  the 


NOUUINGTON    V.   WKICIIT 


667 


goods  at  Philadelphia,  the  plaintiff's  readiness  to  deliver  the 
^roods  and  bills  tiicrcof,  with  custom-house  certificates  of 
weight,  according  to  the  contract,  and  the  defendants'  refusal  to 
nccept  them.  The  third  count  differed  from  the  second  only  in 
averring  that  four  hundred  tons  were  shipped  by  the  plaintiff  in 
I'fhruary  and  accepted  by  the  defendants,  and  that  the  rest  was 
^hipped  by  the  plaintiffs.  a<-  ^'  e  rate  of  about  one  thousand  tons 
a  month,  "in  March,  April,  May,  June,  and  July.  The  defend- 
ants pleaded  non  assumpsit.  The  material  facts  proved  at  the 
trial  were  as  follows: 

The  plaintiff   shipped  from    various    European    ports    four 
hundred  tons  by   )ne  vessel    in   the  last   part  of  February,  eight 
hundred  and    eighty-five    tons    by   two    vessels  in  March,   one 
tliousuul.  five  hundred  and  seventy-one  tons  by  five  vessels  in 
April,  eight  hundred   and  fifty   tons   by  three  vessels  in  May, 
<,ne  thousand  tons  by    two   vf  ssels  in   June,    and    one   hundred 
tons  by  one    vessel    in    July,    and   notified    to    the    defendants 
lath  shipment.     The  defendants  received  and  paid  for  the  Feb- 
ruary shipment  upon   its   arrival    in   March,  and  in  April  gave 
directions   at  what  wharves    the  March  shipments    should   be 
discharged  on  their  arrival,  but  on    May   14,   about    the    time 
of  the  arrival   of  the   March  shipments,   and  having  been  then 
for  the    first   time    informed   of  the    amounts  shipped    in  Feb- 
rna:-y'  March,  and  April,  gave  Etting  written  notice  that  they 
should  decline    to   accept    the    shipments    made   in  March  and 
April,  because  none  of  them  were  in  accordance  with  the  con- 
■ract:    and  in    answer   to  a  letter  from  him  of  May  16,  wrote 
him  on  May    17,  as  follows:      "We   are   advised  that  what  has 
occurred  does  not  amount  to   an  acceptance  of   the  iron  under 
the  circumstances,  and  the  terms  of  the  contract.     You  had  a 
right  to  deliver   in   parcels,   and  we   had  a  right  to  expect  the 
stipulated  quantity  would   be  delivered  until   t'      time  was  up 
in    which   that  was    possible.     Both   delivering    and   receiving 
were  thus  far  conditional  on  their  being  thereafter   complete 
delivery  in  due   time    and   of    the    stipulated   article.     On  the 
assumption  that  this  time  had  arrived,   and  that  you  had  ascer- 
tained that  you  did  not  intend  to,  or  could  not,  make  any  fur- 
ther deliveries  for  the  February  ana  March  shipments,  we  gave 
you  the  notice  that  we  declined  accepting  those  deliveries.     As 
to  April,  it  is  too  plain,   we   suppose,   to  require  any  remark. 


66S       MODES  OF  OUTAIMNG  TITLE  TO  PERSONAL  PllOPEKTY. 


If  we  are  mistaken  as  to  our  obligation  for  the  February  anil 
Marcli  shipments,  of  course  vvc  must  abide  the  consequencc^: 
but  if  we  are  riglit,  you  have  not  performed  your  contract,  :ii 
you  certainly  have  not  for  the  April  shipments.  There  is  then 
the  very  serious  and  much  debated  question,  as  we  are  advised, 
whether  the  failure  to  make  the  stipulated  shipments  in  Febru- 
ary or  March  has  absolved  us  from  the  contract.  If  it  does,  wo 
of  course  will  avail  ourselves  of  this  advantage." 

On  May  iS  Etting  wrote  to  the  defendants,  insisting  on 
their  liability  for  both  past  and  future  shipments,  and  saying. 
among  other  things:  "In  respect  to  the  objection  that  there 
had  not  been  a  complete  delivery  in  due  time  of  the  stipulated 
article,  I  beg  to  call  your  attention  to  the  fact  that  while  tho 
contract  is  for  five  thousand  tons,  it  expressly  stipulates  that 
deliveries  may  be  made  during  six  months,  and  that  they  arc 
onlv  to  be  at  the  rate  of  about  one  thousand  tons  per  month." 
"As  to  April,  while  it  seems  to  me  'too  plain  to  require  any 
remark,'  I  do  not  see  how  it  can  seem  so  to  you,  unless  you 
intend  to  accept  the  rails.  If  you  object  to  taking  all  three 
shipments  made  in  that  month,  I  shall  feel  authorized  to  deliver 
only  two  of  the  cargoes,  or,  for  that  matter,  to  make  the  deliv- 
ery of  precisely  one  thousand  tons.  But  I  think  I  am  entitled 
to  know  definitely  from  you  whether  you  intend  to  reject  the 
April  shipments,  and,  if  so,  upon  what  ground,  and  also  whether 
you  are  decided  to  reject  the  remaining  shipments  under  the 
contrrct.  You  say  in  your  last  paragraph  that  you  shall  avail 
yourselves  of  the  advantage,  if  you  are  absolved  from  the 
contract ;  but,  as  you  seem  to  be  in  doubt  whether  you  can  set 
up  that  claim  or  not,  I  should  like  to  know  definitely  what  is 
your  intention." 

On  May  19  the  defendants  replied:  "We  do  not  read  the 
contract  as  you  do.  We  read  it  as  stipulating  for  monthly 
shipments  of  about  one  thousand  tons,  beginning  in  February, 
and  that  the  six  months  clause  is  to  secure  the  completion  ot 
whatever  had  fallen  short  in  the  five  months.  As  to  the  mean- 
ing of  'about,'  it  is  settled  as  well  as  such  a  thing  can  be  ;  and 
certainly  neither  the  February,  March,  nor  April  shipments 
are  within  the  limits.  As  to  the  proposal  to  vary  the  notices 
for  April  shipments,  we  do  not  think  you  can  do  this.  The 
notice    of    the     shipments    as     soon    as    known,    you    were 


PROPEKTV 

;  February 

consequences: 

3ur  contract,  ;is 

There  is  then 
we  are  advised, 
nents  in  Febrii- 

If  it  does,  we 

ts,  insisting  on 
its,  and  saying. 
;tion  that  there 
)f  the  stipulated 
that  while  thi' 

stipulates  that 
d  that  they  arc 
ns  per  month." 

to  require  any 
'ou,  unless  you 
aking  all  three 
irized  to  deliver 
make  the  deliv- 
ik  I  am  entitle(i 
nd  to  reject  the 
md  also  whether 
lents  under  the 
t  you  shall  avail 
;d  from  the 
ther  you  can  set 
^finitely  what  is 

do  not  read  the 
ng  for  monthly 
ng  in  February, 
e  completion  ot 
As  to  the  mean- 
ling  can  be ;  and 
!\pril  shipments 
vary  the  notices 
n  do  this.  The 
wn,    you    were 


;J 


NORHINGTON    V.   WRIGHT. 


669 


lund  to   give,   and  can  not  afterward    vary  it  if  they  do  not 
conform  to  the  contract.     Our  right  to  be  notified  immediately 
tliat  the  shipments  were  known  is  as  material  a  provision  as 
any  other,  nor  can  it  be  changed  now  in  order  to  make  that  a 
performance    which     was     no     performance    within    the    time 
ie(|iiircd."     "You  ask  us  to  determine  whether  we  will  or  will 
not  object  to  receive  further  shipments  because  of  past  defaults. 
We  tell  you  we  will  if  we  are  entitled  to  do  so,  and  will  not  if 
we  are  not  entitled  to  do  so.     We  do  not  think  you  have  the 
ri<:ht  to  compel   us  to   decide    a  disputed   question  of  law  to 
relieve  you  from  the  risk  of  deciding  it  yourself.     You  know 
i)iiiteas  well  as  we  do  what  is  the  rule  and  its  uncertainty  of 
application."     On  June    10  Etting  offered  to  the    defendants 
the  alternative  of  delivering  to  them  one  thousand  tons  strict 
measure  on  account  of   the   shipments  in   April.     This    offer 
tliey  immediately  declined.     On  June  15   Etting  wrote  to  the 
defendants  that  two  cargoes,  amounting  to  two  hundred  and 
twenty-one   tons,   of  the    April   shipments,    and   two   cargoes, 
fimounting  to  six  hundred  and  fifty  tons,  of  the  May  shipments 
(designated  by  the  names  of  the    vessels)  had  been  erroneously 
notified  to  them,  and  that  about  nine  hundred  tons  had  been 
shipped  by  a  certain  other  vessel  on  account  of  the  May  ship- 
ments.    On  the  same  day  the  defendants  replied  that  the  notifi- 
cation as  to  April  shipments  could  not  be  corrected  at  this  late 
date,  and  after  the  terms  of  the  contract  had  long  since  been 
hroken.     From  the  date  of  the  contract  to  the  time  of  its  rescis- 
sion by  the  defendants,  the  market  price  of  such  iron  was  lower 
tlian  that  stipulated  in  the  contract,   and  was  constantly  falling. 
After  the  arrival  of  the  cargoes,  and  their  tender  and  refusal, 
thev  were  sold  by  Etting,  with  the  consent  of  the  defendants,  for 
the  benefit  of  whom  it  might  concern. 

At  the  trial  the  plaintiff  contended  (i)  that  under  the  con- 
tract he  had  six  mon.hs  in  which  to  ship  tha  five  thousand  tons, 
and  any  deficiency  in  the  earlier  months  could  be  made  up  sub- 
si(|uently,  provided  that  the  defendants  could  not  be  required 
to  take  more  than  one  thousand  tons  in  any  one  month;  (2) 
that,  if  this  was  not  so,  the  contract  was  a  divisible  contract, 
and  the  remedy  of  the  defendants  for  a  default  in  any  month 

as  not  by  rescisoion  of  the  whole  contract,  but  only  by  deduc- 
tion of  the  damages  caused  by  the  delays  in  the  shipments  on 


670       MODES  OF  OBTAINI..G  TITLE  TO  PERSONAL  PUOrKRTV. 

the  part  of  the  plaintiff.  But  the  court  instructed  the  jury  that 
if  the  delenchuus,  at  the  time  of  accepting  the  delivery  ot  the 
car<^o  paid  for,  had  no  notice  of  the  faiUue  of  the  phunt.ff  to 
.hip  about  one  thousand  tons  in  the  month  of  February,  ■nul 
i.nmediutely  upon  learning  that  fact  gave  notice  of  the.r  .nten- 
tion  to  rescind,  the  verdict  should  be  for  them.  1  he  phunt.t 
excepted  to  this  instruction,  and,  after  verdict  and  judgment 
for  the  defendants,  sued  out  this  writ  of  error. 

Mr   Justice  GuAV.-In  the  contracts  of  merchants,  time  is 
of  the'  essence.     The  time  of  shipment  is  the   usual  and  con- 
venient means  of  fixing  the  probable  time  of  arrival,  with  a 
view  of  providing  funds  to  pay  for  the  goods,   or  of  fuUdhng 
contracts  with  third  persons.     A  statement  descriptive  of  the 
subject-matter,  or  of  some  material  incident,  such  as  the  time 
or  place  of  shipment,  is  ordinarily  to  be  regarded  as  a  warranty 
JM  the  sense  in  which  that  term  is  used  in  insurance  and  mari- 
time law,  that  is  to  say,  a  condition  precedent  upon  the  failure 
ornonperformance  of   which  the  party  aggrieved  may  repudi- 
ate the  whole  contract.     13ehn  v.  IJurness,   3  Best  &  S.  751; 
Bowes  V.  Shand,  z  App.  Cas.  455;  Lowber  v.  Bangs,  2  \\all. 
728;  Davison  v.  Von  Lingen,   113  U.  S.  40,  5  Sup.  Ct.  Rep. 

^"^The  contract  sued   on   is   a  single  contract  for  the  sale  and 
purch-ise  of  five   thousand   tons  of  iron  rails,   shipped  from  a 
European  port  or  ports  for  Philadelphia.     The  subsidiary  pro- 
visions as  to  shipping  in  different  months,  and  as  to  paying  for 
each  shipment  upon  its  delivery,   do  not  split  up  the  contract 
into  as  many  contracts  as  there  shall  be  shipments,  or  deliv- 
eries of  bO  many   distinct  quantities   of   iron.     Mersey  S.  &  I. 
Co   V   Naylor,  9  App.   Cas.  434,  439-     The  further  provision 
that  the  seller  shall  not  be  compelled  to  replace  any  parcel  lost 
after  Uiipment,  simply  reduces,  in  the  event  of  such  a  loss,  the 
■       quantitv  to  be  delivered  and  paid  for.      The  times  of  shipment, 
as  designated   in   the   contract,   are    "at  the   rate  of  about  one 
'thousand  tons  per  month,  beginning  February,  iSSo,  but  whole 
contract  to  be  shipped  before  August  i,  1S80."     These  words 
are  not  satisfied  by  shipping  one  sixth  part  of  the  five  thousand 
'tons   or  about  eight  hundred  and  thirty-three  tons,   in  each  of 
the  six  months  which  begin  with  February  and  end  with  July. 


EKTY. 

i  jury  that 
k^ei  y  ot  the 
phiiutiff  to 
ruary,  nul 
heir  intcn- 
he  plaintiff 
judgment 


its,  time  IS 
il  and  con- 
val,  with  a 
of  fiiUilling 
itive  of  the 
as  the  time 
a  warranty 
e  and  mari- 
1  the  failure 
inav  repudi- 
&  S.  751; 
igs,  3  Wall, 
p.  Ct.  Rep. 

the  sale  and 
jped  from  a 
Dsidiary  pro- 
o  paying  for 

the  contract 
its,  or  deliv- 
ersey  S.  &  I. 
tier  provision 
ly  parcel  lost 
ch  a  loss,  the 

of  shipment, 

of  about  one 
io,  but  whole 

These  words 
live  thousand 
IS,  in  each  of 
;nd  with  July. 


NOUIUNGTON    V.   WUIGIIT. 


G7I 


But  they  require  about  one  thousand  tons  to  bo  shipped  in  each 
of  the  five  months  from  February  to  June  inclusive,  and  allow 
no  more  than  slight  and  unimportant  deficiencies  in  the  ship- 
ments during   those   months   to  be   made  up   in   the   mouth  of 
July.     The  contract  is  not  one  for  the  sale  of  a  specific  lot  of 
-oods  identified    by    independent    circumstances,— such  as  all 
those  deposited  in  a  certain  warehouse,  or  to  be  shipped  in  a 
particular  vessel,  or  that  may  be  manufactured  by  the  seller, 
or  may  be  required  for  use  by  the  buyer,  in  a  certain  mill, — in 
which  case  the  mention  of  the  quantity,   accompanied  by  the 
qualification  of  "about,"  or  "more  or  less,"   is  regarded  as  a 
mere  estimate  of  the  probable  amount,  as  to  which  good  faith 
is  all  that  is  required  of  the  party  making  it.      But  the  contract 
before  us  comes  within  the  general  rule :     "When  no  such  inde- 
pendent circumstances  are  referred  to,  and  the  engagement  is  to 
furnish  goods  of   a    certain   quality  or  character  to   a   certain 
amount,  the  quantity  specified  is  material,  and  governs  the  con- 
tract.    The   addition  of  the  qualifying  words  'about,'    more  or 
less,'  and  the  like,  in  such  cases,  is  only  for  the  purpose  of  pro- 
viding against  accidental  variations  arising  from  slight  and  upim- 
portant  excesses  or  deficiencies  in  number,  measure,  or  weight." 
Brawley  v.  United  States,  96  U.  S.  168,  171,  172.      The  seller 
is  bound  to  deliver  the  quantity  stipulated,  and  has  no  right  either 
to  cofnpel  the  buyer  to  accept  a  less  quantity,  or  to  require  him 
to  select  part  of  a  greater  quantity  ;  and  when  the  goods  are  to  be 
shipped  in  certain  proportions  monthly,  the  seller's  failure  to 
ship  the  required  quantity  in  the  first  month  gives  the  buyer  the 
same  right  to  rescind  the   whole   contract    that  he  would  have 
had  if  it  had  been  agreed  that  all  the  goods  should  be  delivered 

at  once. 

The  plaintiff,  instead  of  shipping  about  one  thousand  tons  in 
February  and  about  one  thousand  tons  in  March,  as  stipulated 
in  the  contract,  shipped  only  four  huntked  tons  in  February, 
and  eight  hundred  and  eighty-five  tons  in  March.  His  failure 
to  fulfill  the  contract  on  his  part  in  respect  to  these  first  two 
installments  justified  the  defendants  in  rescinding  the  whole 
.ontract,  provided  they  distinctly  and  seasonably  asserted  the 
right  of  rescission.  The  defendants,  immediately  after  the 
arrival  of  the  March  shipments,  and  as  soon  as  they  knew  that 
the   quantities  which  had   been    shipped   in   February   and  in 


673       MODES  OF  OBTAINING  TITLE  TO  TEUSONAL  PROPERTY. 

March  were  less  than  the  contract  called  for,  clearly  ami  posi- 
tively  asserted  the  right  to  rescind,  if  the  law  ent.tled  them  to 
do  so.  Their  previous  acceptance  of  the  single  cargo  of  four 
hundred  tons  shipped  in  February  was  no  waiver  of  th.s  np.t 
because  it  took  place  without  notice  or  means  of  knowledge 
that  the  stipulated  quantity  had  not  been  shipped  m  F^^bruary. 
The  price  paid  1)V  them  for  that  cargo  being  above  the  market 
value,  the  plaintiff  suffered  no  injury  by  the  omission  of  the 
defendants  to  return  the  iron;  and  no  reliance  was  placed  on 
that  omission  in  the  correspondence  between  the  parties. 

The  case  wholly  differs  from  that  of  Lyon  v.  Bertram,  20 
How.  149,  in  which  the  buyer  of  a  specific  lot  of  goods 
accepted  .and  used  part  of  them  with  full  means  of  Previously 
ascertaining  whether  they  conformed  to  the  contrac  .  The 
plaintiff,  denying  the  defendants'  right  to  rescind,  and  assert- 
t<r  that  the  contract  was  still  in  force,  was  bound  to  show  such 
performance  on  his  part  as  entitled  him  to  demand  perform- 
a„ce  on  their  part,  and,  having  failed  to  do  so,  can  not  main- 

tain  this  action.  ^  u  1 

For  these  leasons  we  are  of  opinion  that  the  judgment  below 
should  be  affirmed.  But  as  much  of  the  argument  at  the  bar 
was  devoted  to  a  discussion  of  the  recent  English  cases,  and  as 
a  diversity  in  the  law,  as  administered  on  the  two  sides  of  the 
Atlantic,  concerning  the  interpretatidn  and  effect  of  commer- 
cial contracts  of  this  kind,  is  greatly  to  be  deprecated,  it  is 
proper  to  add  that  upon  a  careful  examination  of  the  cases 
referred  to  they  do  not  appear  to  us  to  establish  any  rule  incon- 
sistent  with  our  conclusion.  _         „     1    c.  vr    ,^ 

In  the   leading  case   of  Hoare  v.  Rennie,  5  Hurl.  &  N.  19, 
which  was  an  action  upon  a  contract  of  sale  of  six  hundred  and 
sixty-seven  tons  of  b.ar  iron,  to  be  shipped  from  Sweden  m 
June    Tuly,  August,   and  September,  and  in  about  equal  por- 
tions'  each   month,  at  a  certain  price  payable   on  delivery   the 
declaration    alleged    that   the  plaintiffs   performed    all    things 
necessary  to  entitle  them  to  have  the  contract  performed  by  the 
defendants,  and  were  ready  and  willing  to  perform  the   con- 
tract  on  their  part,  and  in  June  shipped  a  certain  portion  o    the 
iron,  and  within  a  reasonable  time   afterward  offered  to  deliver 
to  the  defendants  the   portion  so  shipped,  but  the  defendants 
.ofused  to  receive  it,  and  gave  notice  to  the  plaintiffs  that  they 


mm 


PERTY. 


NOUUINGTON    V.   WKKJIIT. 


673 


Y  and  posi- 
ed  them  to 
rpo  of  four 
this  ripht, 
knowledge 
I  February, 
the  market 
sion  of  the 
placed  on 
rties. 

Bertram,  30 
t  of  goods 
F  previously 
tract.  The 
,  and  assert- 
0  show  such 
id  perform- 
m  not  main- 

;mcnt  below 
t  at  the  bar 
;ases,  and  as 
sides  of  the 
:  of  commer- 
recated,  it  is 
of  the  cases 
y  rule  incon- 

irl.  &  N.  19, 
hundred  and 
n  Sweden  in 
it  equal  por- 
delivery,  the 
?d    all    things 
ormed  by  the 
nm  the   con- 
portion  of  the 
sred  to  deliver 
le  defendants 
itiffs  that  they 


would  not  accept  the  rest.  The  defendants  pleaded  that  tlie 
shipment  in  June  was  of  about  twenty  tons  only,  and  that  the 
phiintiffs  failed  to  complete  the  shipment  for  that  month  accord- 
int,'  to  the  contract.  Upon  demurrer  to  the  pleas,  it  was 
iir^ned  for  the  plaintiffs  that  the  shipment  of  about  one  fourth 
of  the  iron  in  each  month  was  not  a  condition  precedent,  and 
tliat  the  defendants'  only  remedy  for  a  failure  to  ship  that 
(juantity  was  by  a  cross-action.  But  judgment  was  given  for 
the  defendants.  Chief  Baron  Pollock  saying:  "The  defend- 
ants refused  to  accept  the  first  shipment,  because,  as  they  say, 
it  was  not  a  performance,  but  a  breach  of  the  contract.  Where 
parties  have  made  an  agreement  for  themselves,  the  courts 
ought  not  to  make  another  for  them.  Here  they  say  that,  in 
the  events  that  have  happened,  one  fourth  shall  be  shipped  in 
each  month,  and  we  can  not  say  that  they  meant  to  accept  any 
other  quantity.  At  the  outset  the  plaintiffs  failed  to  tender  the 
quantity  according  to  the  contract, — they  tendered  a  much  less 
quantity.  The  defendants  had  a  right  to  say  that  this  was  no 
performance  of  the  contract,  and  they  were  no  more  bound  to 
accept  the  short  quantity  than  if  a  single  delivery  had  been 
contracted  for.  Therefore  the  pleas  are  an  answer  to  the 
action."  5  Hurl.  &  N.  28.  So  in  Coddington  v.  Paleologo, 
L.  R.  3  Exch.  193,  while  there  was  a  division  of  opinion  upon 
the  question  whether  a  contract  to  supply  goods,  "delivering 
on  April  17th,  complete  Sth  May,"  bound  the  seller  to  begin 
delivering  on  April  17,  all  the  judges  agreed  that  if  it  did» 
and  the  seller  made  no  delivery  on  that  day,  the  buyer  might 
rescind  the  contract. 

On  the  other  hand,  in  Simpson  v.  Crippin,  L.  R.  S  Q.  B. 
14,  under  a  contract  to  supply  from  six  thousand  to  eight 
thousand  tons  of  coal,  to  be  taken  by  the  buyer's  wagons  from 
the  seller's  colliery  in  equal  monthly  quantities  for  twelve 
months,  the  buyer  sent  wagons  for  only  -one  hundred  and  fifty 
tons  during  the  first  month ;  and  it  was  held  that  this  did  not 
entitle  the  seller  to  annul  the  contract  and  decline  to  deliver 
any  more  coal,  but  that  his  only  remedy  was  by  an  action  for 
damages.  And  in  Brandt  v.  Lawrence,  i  Q.  B.  Div.  344,  in 
which  the  contract  was  for  the  purchase  of  four  thousand,  five 
hundred  quarters,  ten  per  cent  more  or  less,  of  Russian  oats, 
43 


(374       >UU.K.S  OK   OHTA.N.NO  TITLE  TO  PKUSONAI.  PKOrKUTV. 

..Shipment  bv  steanuT  or  steamers  durins  February,"   or    in 
case  of   ice   preventing   shipment,  then   immed.ate  y   upon 
„p,„in,  of  navi,.Uion.   and   one    thousand,    one   hundred    . 
thirtv-nine  .luarters  were  shipped  by  one  steamer  m  tunc  and 
three    tliousand,    tlnee    hundred    and    sixty-one   cp.arters    we,c 
shippe.l   too  h,te,  it  was  l>eld    that  the  buyer  was    i.ound    to 
accept  the  one  thousand,  one  hnn.lred  and  thirty-mne  quarte  s 
and  was  liable  to  an  action  by  the  seller  for  refuMUf,  to  accc, 
then.     Such   bein.  the  condition   of    the    law  of  ^-^'^     J 
declared  in  the  lower   courts,    the   case    of   Bovves  v.   Shan  1 
after   conilictin^  decisions  in  the  queen's  bench  ;  -.SKn.  a.u 
the  court  of   appeal,  was  finally  determu^ed  by  the  house  of 
lords,     r    q.  B.  Div.  47°;  -  Q-  B-  Div.  .^^^  2   App.   Ca. 
.-=       In  that  case,  two  contracts  were  made  m  London,  ea  h 
fo,   the   sale   of  three  hundred    tons   of   "Madras  r.ce,   to   be 
shipped  at  Madras  or  coast  for  this  port  during  the  n.on.hs  of 
March  -^'   April,    1S74,    per    Rajah   of    Cochm.         1  be  s.x 
hnndred"tons'mied    eight    thousand,    two    hundred    bags,    o 
^vhich  seven  thousand,  one  hundred  and  twenty  bags  were  put 
on  board,  and  bills  of  lading  signed  in  February;  and  for  the 
rest,  consisting  of  one  thousand  and  thirty  bags  put  on  boau 
in  February,  and  fifty  in  March,  the  bill  of  ladmg  was   s.gned 
in  March.     At  the  trial  of  an  action  by  the   seller  agamst  the 
buyer  for  refusing  to  accept  the   cargo,   evidence  was  given 
that  rice  shipped  in  February  would  be  the  sprung  crop    an^ 
ouite  as  good  as  rice  shipped   in  March   or   Apr.l.     \  et  the 
house  of  lords  held  that  the   action   could  not  be   mauUamed, 
because  the  meaning  of  the  contract,  as  apparent  upon  its  face, 
was  that  all  the  rice  must  be  put  on  board  m  March  and  A      1 
or  in  one   of  those   months.     In   the   opinions  there  delivered 
the  general  principles  underlying  this  class  of   cases  are  most 
cleaHy  and  Lisfactorily  stated.     It  will  be  sufficient  to  quote 
a  few  passages  from  two  of  those  opinions. 

Lord  Chancellor  Cairns  said:  "It  does  not  appear  to  me  to 
be  a  question  for  your  lordships,  or  for  any  court,  to  consider 
'Lther  that  is  a  contract  which  bears  upon  the  face  of  it  son 
reason,  some  explanation,  why  it  was  made  in  that  form,  and 
why  tie  stipulation  is  made  that  the  shipment  should  be  during 
Thele  particular  months.  It  is  a  mercantile  contract,  and  mer- 
chants  are  not  in  the  habit  of  placing  upon  their  contracts  stip- 


i« 


rKUTV. 


NOIIUIXGTON    V.   WKIUIIT. 


675 


ry,"  or,  in 
if  upon  tlie 
Linilred  ami 
n  time,  and 
alters  were 
s  hound  to 
no  ciuarters, 
ng  to  accept 
Enj^land  as 
5  V.  Shand, 
division  and 
he  house  of 

App.   Cas. 
.ondon,  each 

rice,   to   be 

le  months  of 

The  six 

ed   ba<;s,    of 

ags  were  put 

and  for  the 
put  on  board 
r  was   signed 
r  against  the 
ce  was  given 
ing  crop,  and 
)ril.     Yet  the 
e   maintained, 
upon  its  face, 
•ch  and  April, 
here  delivered 
:ases  are  most 
icient  to  quote 

)pear  to  me  to 
iirt,  to  consider 
face  of  it  some 
that  form,  and 
lould  be  during 
1  tract,  and  mer- 
contracts  stip- 


ulations to  which  they  do  not    attach    some   value    and    import- 
ance."    2  App.  Cas.  463.      "If  it  be   admitted  tiiat  llie  literal 
meaning  wo\iid  imply  that  the  whole   (piantity  must  be  put  on 
hoard  during  a  specified  time,  it  is  no   answer  to   that   literal 
meaning, — it  is  no  observation  wliich  can  dispose  of,  or  get  rid 
of,   or   displace,  that   literal   meaning, — to  say  that   it  puts  an 
additional  burden  on  the  seller  without  a  corresponding  benefit 
to  the  purchaser;   that  is  a  matter  of  which  the  seller  and  pur- 
chaser are  the  best  judges.     Nor   is   it   any   reason  for  saying 
that  it  would   be  a  means   by    which   purchasers,  without  any 
rial   cause,   would  frequently  obtain   an   excuse    for  rejecting 
contracts   when   prices   had   dropped.      The    nonfulfillment    of 
anv  term  in    any  contract  is    a   means   by  which  a  purchaser  is 
able  to  get  rid  of  the  contract  wiien   prices   have  dropped ;    but 
that  is  no    reason   why  a  term  which    is  found    in   a  contract 
should  not  be  fulfilled,"     Pages  465,  466,     "It  was  suggested 
tliat  even  if  the  construction  of  the  contract  be  as  I  have  stated, 
still  if  the  rice   was  not  put  on  board  in  the  particular  months, 
that  would  not  be  a  reason  which  would  justify  the  appellants 
in  having  rejected  the  rice  altogether,  but  that   it    might  afford 
a  ground  for  a  cross-action  by  them    if  they   could    show  that 
any    particular   damage   resulted    to    them   from   the   rice  not 
having  been  put  on  board  in   the    months    in   question.     My 
lords,  I  can  not  think  that  there  is  any  foundation  whatever  for 
that  argument.     If  the  construction  of  the  contract  be  as  I  have 
said,  that  it  bears  that  the  rice   is  to  be  put  on  board   in  the 
months  in  question,  that  is  part  of  the  description  of  the  subject- 
matter  of  what  is  sold.     What  is  sold  is  not  three  hundred  tons 
of  rice  in   gross  or  in  general.     It   is   three  hundred   tons   of 
Madras  rice  to  be  put  on  board  at  Madras  during  the  particular 
months,"      "The   plaintiff,   who  sues  upon   that   contract,  has 
not  launched  his  case  until  he  has  shown  that   he  has   tendered 
that  thing  which  has  been  contracted  for,  and  if  he  is  unable  to 
show  that,  he  can   not  claim   any  damages  for  the  nonfulfill- 
ment of  the  contract."     Pages  467,  ^68. 

Lord  Blackburn  said:  "If  the  description  of  the  article 
tendered  is  different  in  any  respect,  it  is  not  the  article  bar- 
gained for,  and  the  other  party  is  not  bound  to  take  it.  I 
think  in  this  case  what  the  parties  bargained  ior  was  rice, 
shipped  at  Madras  or  the  coast  of  Madras.     Equally  good  rice 


676       MODES  OF  Oin-AIN.NG  TIIXK  TO  rEUSGNAL  rUOI-KK  1  V. 

,„i.l,t  have  been  shipped  a  little  to  the  north  or  a  little  to  th.- 
.outh  of  the  coast  of  Madras.     I  do  not  cit.itc  know  what  the 
,„.,„Hlarv  is.  and  prohahly  ec,ually  f^ood   rice  might   have  been 
.hinncdin  rel.ruary  as  was  shippe.l  in  March,  or  eqnally  good 
rice  nr.L'ht  have  been  shipped  in  May  as  was  shipped  in  Aprd 
and  I  dare  say  equally  goo.l  rice  might  have  been  put  on  board 
Muother  ship  as   that   which   was  put  on   board   the    Uajah  of 
Cochin       Mut  the  parlies  have   chosen,  for  reasons  best  known 
to   themselves,  to   say:     We  bargain  to  take  rice,  shipped    ui 
this  particular  region,   at  that  particular  time    on  board   that 
nuticuh.r  ship;   and  before  the  defendants  can  be  compelled  to 
tike  ■mvlhin-  in  fulllllmcnt  of  that  contract  it  must  be  shown 
not    merelv  That   it  is  equally   good,   but  that  it    is    the    same 
article    as'tliey   have   bargained   for,   otherwise  they   are    not 
bound  to  take  it."     3  App.  Cas.  480,  4S1. 

Soon  after  that  decision  of  the  house  of  lords,  two  cases  were 
determined  in  the  court  of  appeal.     In  Renter  v.  Sala,  4  C.  P. 
Div    -0    under  a  contract  for  the  sale  of  "about  twenty-hve 
tons  "(more    or   less)    black   pepper,    October  -'    November 
shipment,  from  Penang  to  London,  the  name   of  the  vessel   or 
vessels,  marks,  and  full  particulars  to  be  declared  to  the  buyer 
in  writing  within  sixty  days  from  date  of  bill   of  ladmg,     the 
seller     withm  the  sixty  days,  declared   twenty-five   tons  by  a 
particular  vessel,  of  which  only  twenty  tons  were  shipped  .n 
November,  and  five  tons  in  December;  and  it  was  held  that  the 
inner  had  the  right  to  refuse  to  receive  any  part  of  the  pepper.   In 
llonck  V.  Muller,  7  Q.  B.  Div.  92,  under  a  contract  for  the  sale  of 
two  thousand  tons  of  pig-iron,  to  be  delivered  to  the  buyer  free 
on  board  at  the  maker's  wharf  "in  November,  or  equally  over 
November,  December,  and  January  next,"  the  buyer   faded  to 
take    iny  iron   in  November,  but  demanded    delivery   of   one 
third  in  December  and  one  third  in  January;   and   it  was  held 
that  the  seller  was  justified  in  refusing  to  deliver,  and  m  giving 
notice  to  the  buyer  that  he  considered  the  contract  as  canceled 
bv  the  buyer's  not  taking  any  iron  in  November. 

The  plaintiff  in  the  case  at  bar  greatly  relied  on  the  very 
recent  decision  of  the  house  of  lords  in  Mersey  Co.  v.  Naylor,  9 
App.  Cas.  434.  affirming  the  judgment  of  the  court  of  appeal  in 
o  O  B  Div.  64S,  and  following  the  decision  of  the  court  ot 
common  pleas  in  Freeth  v.  Burr,  L.  R.  9  C  P.  20S.   But  the  point 


Ill  Y. 


tie  to  the 
what  the 
ave  been 
;illy  good 
in  April, 
on  board 
Rajah  of 
St  known 
lipped    ill 
oard   that 
npellcd  ti> 
he  shown 
the    same 
{  are    not 

;ascs  were 
a,4C.P. 
wcnty-Hve 
No%ember 

vessel   or 

the  buyer 
cling,"  the 

tons  by  a 
shipped  in 
ild  that  the 
pepper.  In 
r  the  sale  of 

buyer  free 
jually  over 
2V  failed  to 
;ry  of  one 
t  was  held 
id  in  giving 
as  canceled 

on  the  very 
V.  Naylor,  9 
of  appeal  in 
he  court  of 
3ut  the  point 


NOKHINdlON    V.    WIlKillT. 


677 


there  decided  wastliat  the  faiii'iie  of  the  buyer  to  pay  for  the  tirst 
installment  of  tiie  goods  upon  deliseiy  docs  not,  unless  the  cir- 
cumstances  evince    an    intention  on  liis   part   to  be  no  longer 
bound  by  tlie  contract,  entitle  the  seller  to  rescind  tlie  contract, 
anil  to  decline  to  make  further  deliveries  under  it.      And  the 
grounds    of  the  decision,   as   stateil   by    Lord   Chancellor  Sel- 
bourne  in  moving  judgment  in  tlie  house  of  lords,  are  applica- 
ble only  to  the  case  of  a  failure  of  the   buyer   to   pay  for,   and 
not  to  that  of  a  failure  of  the  seller  to  deliver  the   lirst  install- 
ment.    The   lord   chancellor   said:      "The  contract  is  for  the 
purchase  of  five  thousand  tons  of  steel  blooms  of  the  company's 
manufacture;   therefore,  it  is  one  contract  for  the  purchase   of 
that  quantity  of  steel  blooms.     No  iloubt,  there   are  subsidiary 
terms  in  the  contract,  as  to  the  time  of  delivery, — 'delivery  one 
thousand  tons  monthly,  commencing  January  next,' — and  as  to 
the   time  of  payment, — 'payment  net  cash  within   three  days 
after  receipt  of  shipping  documents,' — but  that  does  not  split 
up  the  contract  into  as  many  contracts  as  there  shall  be  deliv- 
eries for  the  purpose  of  so  many  distinct  quantities  of  iron.     It 
is  quite  consistent  with  the  natural  meaning  of  the  contract  that 
it  is  to  be  one  contract  for  the  purchase  of  that  quantity  of  iron 
to  be  delivered   at  those  times   and   in   that  manner,  and   for 
which  payment  is  so  to  be  made.     It  is  perfectly  clear  that  no 
pitrticular  payment  can  be  a  condition  precedent  of  the  entire 
contract,  because  the  delivery  under  the  contract  was  most  cer- 
tainly to  precede  payment;  and  that  being  so,  I  do  not  see  how, 
without  express  words,  it  can   possibly   be  made  a  condition 
precedent  to  the  subsequent  fulfillment  of  the  unfulfilled  part 
of  the  contract  by  the  delivery  of  the  undelivered  steel."     9 
App.  Cas.  439. 

Moreover,  although  in  the  court  of  appeal  dicta  were  uttered 
tending  to  approve  the  decision  in  Simpson  v.  Crippin,  and  to 
disparage  the  decisions  in  Hoare  v.  Rennie  and  Ilonck  v.  Mul- 
ler,  above  cited,  yet  in  the  house  of  lords  Simpson  v.  Crippin 
was  not  even  referred  to,  and  Lord  Blackburn,  who  had  given 
the  leading  opinion  in  that  case,  as  well  as  Lord  Bramwell, 
who  had  delivered  the  leading  opinion  in  Ilonck  v.  Muller, 
distinguished  Hoare  v.  Rennie  and  Ilonck  v.  Muller  from  the 
case  in  judgment.     9  App.  Cas.  444,  446. 


67S       MODKS  OK  OnTAININO  TITt.K  TO  PKItSONAI.  I'lK  H'KIITY, 

Tpon  a  review  of  tlu-  i:n;,'lisli  decisions,  the  rule  lai.l   .lown 
ill  tlK-  earlier  cases  of  lloare  v.  Keiinie  ami  Coddin^toii  v.  I'alc- 
„l.,u„,   as  well    as    in    the   latter   cases  of   Keuter  v.   Sala  an.l 
llonck  V.  Muller,  appears  to  us  to  be  supported  by  a  greater 
weight   of   authority   than   the  rule  stated   in  the  intermediate 
cases  of  Simpson  v.  Crippin  an.l   Hrandt  v.  Lawrence,  and  to 
accord  better  with  the  general  principles  allirmed  by  the  house 
of  lords   in    Howes  v.  Shand.  while  it  in  no  wise  contravenes 
the  decision  of  that  tribunal  in  >.ersey  Co.  v.  Naylor.     In  this 
country  there  is  less  judicial  authority  upon  the  ciuestion.     The 
two  cases  most  nearly  in  point  that  have  come  to  our  notice  are 
liill  V.    lilake,  97  N.   Y.    216,  which  accords  w..h   Bowes  v. 
Shand,   an.l   King  I'hilip  Mills  v.   Slater,    12  R.  I.  82,  which 
approves  and  f.dlows  Hoare  v.  Kennie.     The  recent  cases  m 
the  supreme  court  of  IV-nnsylvania,  cited   at  the  bar,  support 
no  other  concluMon.     In  Shinn  v.  liodine,  60  Pa.  St.  iSi,  the 
point  decided  was  that  a  contract  for  the  purchase  of  eiRht  hun- 
dred tons  of  coal   at  a  certain  price  per  ton,  "coal  to  be  deliv- 
ered on  board  vessels  as  sent  for  durinfj  the  montlis  of   August 
and  September,"  was  an  entire  contract,  under  which  nothin<r 
was  payable  until  delivery  of  the  whole,  and  therefore  the  seller 
had  no'r;j,'ht  to  rescind  the  contract  upon  a  refusal  to  pay  for 
one  carjrc^ before  that  time.      In  Morgan  v.  McKee,  77   I'a.  St. 
22S,  and  in  Scott  v.  Kittanninp:  Coal  Co.,  S9  I'a.  St.  231,  the 
buyer's  rifjht  to  rescind  the  whole  contract  upon  the  failure  of 
the  seller  to  deliver  one  installment  was  denied,  only  because 
that  right  had  been  waived,  in    he  one  case   by   unreasonable 
delay  in  1  Lserting  it,  and  in  the  other  by  having  accepted,  paid 
for,  and  used  a  previous  installment  of  the  goods.     The  deci- 
sion of  the  supreme  judicial   court  of  Massachusetts   in  Win- 
chester V.  Newton,  2  Allen,  492,  resemV^les  that  of  the  house 
of  lords  in  Mersey  Co.  v.  Xaylor. 

Being  of  opinion  that  the  plaintiff's  failure  to  make  such 
shipments  in  February  and  March  as  the  .  ontract  required  pre- 
vents  his  maintaining  this  action,  it  is  needless  to  dwell  upon 
the  further  objection  that  the  shipments  in  April  did  not  comply 
with  the  contract,  because  the  defendants  could  not  be  com- 
pelled to  take  about  one  thousand  tons  out  of  the  larger  quantity 
shipped  in  that  month,  and  the  plaintiff,  after  once  designating 


iM 


ll'I-.KTV. 

Inicl  down 
ton  V.  I'alc- 
/.   Salii  ami 
)y  a  j^reatcr 
nterini'diate 
ciice,  and  to 
y  the  liouse 
contravenes 
lor.     In  this 
stion.     Tlie 
iir  notice  are 
.Ii   Howes  V. 
[.  82,  which 
cent  cases  in 
bar,  support 
St.  183,  the 
of  eight hnn- 
1  to  be  deliv- 
is  of   Angiist 
hich  notliin<.' 
ore  the  seller 
d  to  pay  for 
s,  77  Ta.  St. 
,  St.  331,  the 
the  failure  of 
only  because 
unreasonable 
ccepted,  paid 
;.      The  deci- 
;etts   in  Win- 
of  the  house 

to  make  such 
required  pre- 
to  dwell  upon 
lid  not  comply 
not  be  com- 
arger  quantity 
:e  designating 


SHAW  HAS    V.  VAN    NI'.ST. 


679 


the  names  of  vessels,  as  the  contract   bound   him   to  do,  could 

not   substitute   other  vessels.     See    Husk  v.  Spence,   4  <^  ^'"M'- 

,:o;  Graves  v.    Legg,   9  E^'^h-   7«'^;  ^"^^^^''^  ^-  >^">'»' /'''"^ 
•\  ^  ,  Judgment  alhrmed. 

cited.  '' 

CoNHULT-nruce  V.  Peterson,  ^  Johnn.  534;  U'>' l'-'''"  O'l  C"-  v. 
Ih.L'hev,  S6I'«.  St.  7";  l'"^vn3  v.  Marsh,  2.,  Conn.  ,.9;  '-■•'k.n  v. 
l.,„a,er  Co.,  4:  Mich.  .9''.;  Cohen  v.  I'emberton  S3  Conn  ""  ^-- 
,„«er  V.  Crocker,  (>2  N.  Y.  .5>  I  Urawley  v.  U.  .S..  9^.  I  .  S.  7.  -  l^'"« 
Philip  MliU  Co.  V.  Slater,  .2  U.  I.  H:,  34  A'"-  K«P-  603;  l''erBon  v. 
Crooks,  115  N.  Y.  539.  «2  A'"'  •"*'■  '^'-'l''  ^^^ ' 


6.     The  Rcwcdics  for  the  Dreaeh   of  the   Contract  of  Sale. 

§  114.    The  seller's  remedles-aotion  for  purchase  price. 

SlIAWIIAN  V.  VAN  NEST. 

[25  Ohio  St.  490-] 
Sitpretuc  Court  of  Ohio,  1874. 

Motion  for  lej  ve  to  file  a  petition  in  error. 

Action  bv  Peter  Van  Neat  against  Reasin  W.  Shawhan  to 
recover  on  a  contract  by  which  he  agreed  to  make  for  Shawhan 
a  curiage  in  accordance  with  his  directions  for  $700,  and  have 
the  same  ready  for  delivery  at  his  shop  October   i,   1871,  ni 
consideration  whereof  Shawhan   agreed  to  accept  the   carru-ige 
at  the  shop  and  pay  the  agreed  price.     He  alleged  the  tender 
of  the  carriage  October  first,   and   the  refusal  of   Sh.whan  to 
'.ccept  or  pay  for  it.     The  evidence  established  the  allegations 
of  the  complaint.     The  court  instructed  the  jury  that,   if  they 
found  the  issues  for  the  plaintiff  they  should  give  him  a  verdict 
for  the  contract  price  of  the  carriage,  with  interest  from  the 
time  the  money  should  have  been   paid.     Shawhan   requested 
the  court  to  give  to  the  jury  the  following  special  instructions: 
(O  "If    in  this  case,  the  evidence   shows  that  the   defendant 
ordered  the  plaintiff  to  make  for  him  a  carriage,  and  agreed  to 
take  dr  receive  it  when   finished,  and  to  pay  a  reasonable  price 
therefor,  and  the  plaintiff  did,  in  pursuance  of   such  order  and 
ac^reement,  make  such  carriage,  of  the  value  of   seven  hundred 


6So       MODES  OF  OBTAINING  TITLE  TO  I'ERSONAL  PROPERTY. 

dollars,  and  have  the  same  in  readiness  for  delivery  at  his  shop, 
of  which  the  defendant  had  notice,  and  the  defendant  then 
failed,  netjlected,  and  refused  to  take,  receive,  or  pay  for  said 
carriao-e,  though  requested  so  to  do  by  the  plaintiff,  these  will 
not  authorize  you  to  render  a  verdict  for  the  plaintiff  for  the 
price  or  value  of  the  carriage."  (2)  "If  the  pliintiff  has 
proved  the  making  of  the  carriage  for  the  defendant,  and  the 
refusal  of  the  latter  to  receive  and  pay  for  it,  as  alleged  in  the 
petition,  then  he  can  only  recover  for  the  damages  or  losses 
he  has  actually  sustained  by  reason  of  this  refusal  of  the 
defendant,  which  is  the  difference  between  the  agreed  price 
and  the  actual  value."  These  instructions  the  court  refused 
to  give,  and  Shawhan  excepted.  The  jury  found  for  Van  Nest, 
and  gave  him  the  contract  price  of  the  carriage,  with   interest. 

GiLMORE,   J.— The  only  question  to  be  determined  in  this 
case   is:     Did   the  court  err  in  refusing  to  give  to  the  jury  the 
special  iustructions   requested   by   the    defendant  on   the    trial 
below?     The    authorities   cited    by   counsel    for    the    parties 
respectively,  are  not  in  harmony  with  each  other  on  this  ques- 
tion.    Some  of  those  cited  by  the  plaintiff  in  error  (defendant 
below)    show    clearly    that  under  the  pleadings    and   practice 
at    common    law,    there    could    be    no   recovery    under    the 
common  counts  in  assumpsit,  for  goods  sold  and  delivered,  or 
for  goods  bargained  and  sold,  where  no  delivery  sutlicient  to 
pass  the  title  from  the  vendor  to  the   vendee  had  been  made. 
And   further,  that  in  this  form  of  action,  proof  of  a  tender  of 
the  goods  by  the  vendor  to  the  vendee,  or   leaving  them   with 
him    against   his   remonstrance,  would   not   constitute    such  a 
deliveiy   as   would   pass   the   title    and   enable  the  vendor  to 
recover.     While  these  may  be  regarded  as  settling  the  rules  of 
pleading  and   evidence  on  the  trial   of  particular  cases,    and 
therefore  not  decisive  of  the  question  when  raised  under  issues 
so  formed  as  to  present  it  freed  from  the  technicalities  of  plead- 
ing, still   there  are   other  cases  cited  on  the  same  side,  which 
declare  the  rule  to  be  as  follows :     Where  an  action  is  brought 
bj   .  'e  vendor  against  the  vendee,  for  refusing  to  receive  and 
pay  for  goods  purchased,  the  measure  of  damages  is  the-  actual 
loss   sustained  by  the   vendor   in   consequence   of  the  vendee 
refusing  to  take  and  pay  for  the  goods,  or,  in  other  words,  the 


PROPERTY. 


SHAWIIAN    V.   VAN    NEST. 


68 1 


very  at  his  shop, 
defendant  then 
I  or  pay  for  said 
intiff,  these  will 
plaintiff  for  the 
the  pliintiff  has 
fend  ant,  and  the 
as  alleged  in  the 
mages  or  losses 
refusal  of  the 
he  agreed  price 
he  court  refused 
id  for  Van  Nest, 
e,  with   interest. 

etcrmined  in  this 
■e  to  the  jury  the 
ant  on   the   trial 
for    the    parties 
licr  on  this  ques- 
srror  (defendant 
igs    and   practice 
very    under    the 
ind  delivered,  or 
very  sutlici'ent  to 
had  been  made, 
jf  of  a  tender  of 
aving  them   with 
:onstitute    such  a 
le  the  vendor  to 
ttling  the  rules  of 
icular  cases,    and 
iised  under  issues 
licalities  of  plead- 
same  side,  which 
action  is  brought 
le  to  receive  and 
lages  is  the  actual 
ce   of  the  vendee 
I  other  words,  the 


difference  between  the  contract  price  and  the  market  price  at 
the  time  and  place  of  delivery.     In  the  authorities  cited  by  the 
plaintiff  in  error,   no  distinction  is  drawn,  or  attempted  to  be 
drawn,  between  the  sale  of  goods  and  chattel;'  already  in  exist- 
ence, and  an  agreement  to  furnish  materials  and  manufacture  a 
specific   article  in  a  particular  way,    and  according  to   order, 
which  is  not  yet  in  existence ;   the  theory  being,  that  in  neither 
case  would  the  title  pass,  or   property  vest   in  the   purchaser, 
until  there  had  been  an  actual  delivery,  and  th.it  until  the  title 
had  passed,  the  vendor's  .remedy  was  limited   to  the  damages 
he  had  suffered  by  reason  of  the  breach  of  the  contract  by  the 
vendee,  which  were  to  be  measured  by  the  rule  above  stated. 
In  this  case  it  is  not  necessary  to  determine  whether  or  not  a 
distinction,    resting    upon    principles    of    law,    can    be    drawn 
between  ordinary  sales  of  goods  in  existence  and  on  the  market, 
and  goods  made  to  order  in  a  particular  way,  in  pursuance  of 
a  contract  between  the  vendor  and  the  v  ^idee.     The  case  here 
is  of  the  latter  kind,  and  the  question  is,  whether  the  plaintiff 
below  was  entitled  to  recover  the  contract  price  of  the  carriage 
on  proving  that  he  had  furnished  the  materials,  and  made  and 
tendered  it  in  pursuance  of  the  terms  of  the  contract. 

Counsel  for  the  defendant  in  error  (plaintiff  below)  has  cited 
a  number  of  authorities,  in  which  the  questions  presented  and 
decided  arose  upon  facts  similar  to  those  in  this  case,  and  upon 
issues  presenting  the  question  in  the  same  way ;  and  as  the 
conclusions  we  have  arrived  at  are  based  upon  this  class  of 
authorities,  some  of  them  may  be  particularly  noticed. 

In  Bement  V.  Smith,  15  Wend.  493,  the  defendant  employed 
the  plaintiff,  a  carriage  maker,  to  build  a  sulky  for  him,  for 
which  he  promised  to  pay  eighty  dollars.  The  plaintiff  made 
the  sulky  according  to  contract,  and  took  it  to  the  residence  of 
the  defendant,  and  told  him  he  delivered  it  to  him,  and 
demanded  payment,  in  pursuance  of  the  terms  of  the  contract. 
The  defendant  refrsed  to  receive  it.  Whereupon  the  plaintiff 
told  him  he  would  leave  it  with  Mr.  De  Wolf,  who  lived  near; 
which  he  did,  and  commenced  suit.  On  the  trial  it  was  proved 
that  the  sulky  was  worth  eighty  dollars,  the  contract  price. 
The  court  charged  the  jury  that  the  tender  of  the  carriage  was 
substantially  a  fulfillment  of  the  contract  on  the  part  of  the 
plaintiff,  and  that  he  was  entitled  to  sustain  his  action  for  the 


6S2       MODF.S  OF  OBTAIN'ING  TITLE  TO  PERSONAL  PROPERTY. 


price  agreed  upon  between  the  parties.  The  defendant's  coun- 
sel reciuested  the  court  to  charge  the  jury  that  the  measure  of 
damages  was  not  the  sulky,  hut  only  the  expense  of  taking 
it  to  the  residence  of  the  defendant,  delay,  loss  of  sale,  etc.  The 
judge  declined  to  so  charge,  and  reiterated  the  instruction  that 
the  value  of  the  article  was  the  measure  of  damages.  The  jury 
found  for  the  plaintiff,  with  eighty-three  dollars  and  twenty- 
six  cents  damages,  being  the  contract  price  with  interest.  The 
charge  to  the  jury  was  sustained  by  the  supreme  court  of  New 

York. 

In  Brdlentine  et  al.  v.  Robinson  et  al.,  46  Penn.  St.  177,  an 
agreement  was  made  between  the  plaintiffs  and  defendants, 
whereby  the  plaintiffs  were  to  provide  materials,  and  construct 
for  the  defendants  a  six-inch  steam  engine,  with  boiler  and 
Gifford  injector  and  heater,  in  consideration  whereof  the 
defendants  were  to  pay  plaintiffs  $535  in  cash  on  the  com- 
pletion thereof.  The  plaintiffs  complied  with  and  completed 
the  contract  in  all  respects  on  their  part,  but  the  defendants 
refused  to  pay  according  to  contract.  On  the  trial,  the  plain- 
tiffs proved  the  contract,  and  the  performance  of  it  on  their 
part,  and  that  the  engine  was  still  in  their  hands. 

The  defendants'  counsel  asked  the  court  to  instruct  the  jury 
"that  the  proper  measure  of  damages  in  this  case  is  the  differ- 
ence between  the  price  contracted  to  be  paid  for  the  engine  and 
the  market  price  at  the  time  the  contract  was  broken."  The 
court  declined  to  charge  as  requested,  and  instructed  the  jury 
that  the  measure  of  damages  was  the  contract  price  of  the 
engine,  with  interest.  There  was  a  verdict  for  the  plaintiffs 
for  the  contract  price.  The  case  was  taken  to  the  supreme 
court,  and  the  error  assigned  was  the  refusal  of  the  court  to 
give  the  instructions  requested  by  the  defendant. 

The  supreme  court  affirmed  the  judgment  in  the  case  below. 
It  will  be  seen  that  these  cases  are  very  similar,  and  presented 
the  same  question,  and  in  the  same  manner  that  the  question  is 
presented  in  this  case.  Graham  v.  Jackson,  14  East,  498, 
decides  the  point  in  the  same  way.  Mr.  Sedgwick,  in  his 
work  on  Damages,  side  page  2S0,  in  speaking  on  this  subject, 
says:  "Where  a  vendee  is  sued  Tor  nonperformance  of  the 
contract  on  his  part,  in  not  paying  the  contract  price,  if  the 
goods  have  been  delivered,    the  measure  of  damages    is,    of 


«■ 


lOPEHTY. 


SHAWHAX    V.  VAN    NEST. 


6S3 


ndant's  coiin- 
;  measure  of 
ise  of  taking 
ale,  etc.  Tlie 
stniction  that 
;s.  The  jury 
and  tvventy- 
nterest.  The 
court  of  New 

n.  St.  177,  an 
d  defendants, 

and  construct 
ith  boiler  and 

whereof    the 

on  the  com- 
md  completed 
:he  defendants 
ial,  the  plain- 

of   it  on  their 

struct  the  jury 
;e  is  the  differ- 
the  engine  and 
Token."  The 
ucted  the  jury 
t  price  of  the 
r  the  plaintiffs 
to  the  supreme 
of  the  court  to 

the  case  below, 
and  presented 
the  question  is 
14  East,  498, 
dgwick,  in  his 
on  this  subject, 
)rmance  of  the 
ict  price,  if  the 
iamages    is,    of 


'!• 


f ourse,  the  price  named  in  the  agreement ;   but  if  their  posses- 
sion has  not  been  changed,  it  has  been  doubted  whether    the 
rule  of  damages    is  the   price    itself,    or    only    the    difference 
between  the   contract  price  and  the  value  of  the  article  at  the 
time  fixed  for  its  delivery.     It  seems  to  be  well  settled  in  such 
cases  that  the  vendor  can  resell  them,  if  he  sees  fit,  and  charge 
tlie  vendee  with  the  difference  between  the  contract  price  and 
that  realized  at  the  sale.     Though  perhaps  more  prudent,  it  is 
not  necessary  that  the  sale   should  be  at   auction;   it  is  only 
requisite  to   show   that  the  property  was  sold  for  a  fair  price. 
But  if  the  vendor  does  not  pursue  this   course,   and,   without 
reselling  the  goods,  sues  the  vendee  for  his  breach  of  contract, 
the  question  arises  which  we  have   already  stated,  whether  the 
vendor  can  recover  the  contract  price,  or  only  the  difference 
between  that  price  and  the  value  of  the  goods  which  remain  in 
the  vendor's  hands ;   and  the  rule  appears  to  be  that  the  vendor 
can  recover  the  contract  price  in  full." 

In  Iladley    v.   Pugh   et  al.,   Wright,   554,   the    action   was 
'•assumpsit  on  a  written  agreement  between  the  parties,  for  the 
.lefendants   to   take    all    the    salt    the    plaintiff    manufactured 
between  the  second  of  June,  1831,  and  the   first  of  January, 
1S32,  to  be  delivered  at  the  landing  in  Cincinnati,  from  time  to 
time'   as  the  navigation  of  the  Muskingum  and  Ohio  should 
permit,   and  to  pay  forty-five  cents  a  bushel."     The  plaintiff 
proved  the  agreement,   and  the  offer  to  deliver  to  the  defend- 
ants three  hundred  and  fifty  barrels  of  salt,  which  the  defend- 
ants  refused  to  receive.     There  was  an  issue  in  the  case,  as  to 
whether  the  contract  had  been  previously  fulfilled   and   aban- 
doned by  the  parties.     The  court  (Lane,  J.)  charged  the  jury 
thrif  !f  the  contract  had  not  been  "fulfilled  or  abandoned,   and 
the  plaintiff  tendered   the  salt  under  the  contract,  which  was 
refused,   he   had  a  right  to   leave  it   for   the   defendants   and 
recover  the  value." 

The  only  case  I  have  examined  in  which  the  authorities  on 
this  point  are  reviewed,  is  that  of  Gordon  v.  Norris,  49  N.  H. 
-6.  The  case  is  too  lengthy  and  complicated  to  attempt  to 
-ivc  an  abstract  of  it  here,  but  the  point  under  consideration 
was  involved :  and  although  the  learned  judge  criticises  the  law 
as  laid  down  by  Mr.  Sedgwick,  and  even  shows  that  the 
authorities  he  quotes  in  support  of  his   position  do  not   sustam 


<5S4       MODES  OF  OBTAINING  TITLE  TO  I'EUSONAL  PKOPERTy. 


him,  for  the  reason  pointed  out,  yet  he  says  that  there  is  a  dis- 
tinction between  the  case  of  Bcmcnt  v.  Smith,  and  the  ordinary 
cases  of  goods  sold  and  delivered — viz.,  "the  distinction 
between  a  contract  to  sell  jjoods  then  in  existence,  and  an  agree- 
ment to  furnish  materials  and  manufacture  an  article  in  a  par- 
ticular way  and  according  to  order,  which  is  not  yet  in  exist- 
ence." He  recognizes  Bement's  case  and  others  of  the  same 
class  as  exceptions  to  the  general  rule  which  is  to  be  applied  in 
the  sale  of  ordinary  goods  and  merchandise  which  have  a  fixed 
market  value;  and  in  the  syllabus  of  the  case,  the  distinction  is 
kept  up  and  stated  as  follows: 

"When  the  vendee  refuses  to  receive  and  pay  for  ordinary 
goods,  wares,  and  merchandise,  which  he  has  contracted  to 
purchase,  the  measure  of  damages  which  the  vendor  is  entitled 
to  recover  is  not  ordinarily  the  contract  price  for  the  goods,  but 
the  difference  between  the  contract  price  and  the  market  price 
or  value  of  the  same  goods  at  the  time  when  the  contract  was 
broken. 

"But  when  an  artist  prepares  a  statue  or  picture  of  a  partic- 
ular person  to  order,  or  a  mechanic  makes  a  specific  article  in 
his  line  to  order,  and  after  a  particular  measure,  pattern,  or 
style,  or  for  a  particular  use  or  purpose — when  he  has  fully 
performed  his  part  of  the  contract,  and  tendered  or  offered  to 
deliver  the  article  thus  manufactured  according  to  contract,  and 
the  vendee  refuses  to  receive  and  pay  for  the  same,  he  may 
recover  as  damages,  in  an  action  against  the  vendee  for  breach 
of  the  contract,  the  full  contract  price  of  the  manufactured 
article." 

As  has  been  said,  we  are  not  called  upon  now  to  determine 
whether  the  distinction  as  drawn  in  the  clauses  quoted,  is 
sound  on  principle  or  not;  but  be  that  as  it  may,  we  recognize 
the  law  applicable  to  the  case  before  us  as  being  correctly 
stated  in  the  clause  last  quoted. 

Judge  Swan,  in  his  excellent  "Treatise"  [lo  Ed.,  7S0],  in 
speaking  of  the  effects  of  a  tender  upon  the  rights  of  the  buyer 
and  seller,  and  of  the  damages  in  such  case,  says:  "The  gen- 
eral rule  in  relation  to  the  rights  of  a  seller,  under  a  contract  of 
sale,  where  he  has  tendered  the  property,  and  the  buyer  refuses 
to  receive  it,  is  this:  The  seller  may  leave  the  property  at 
some  secure  place,  at  or  near  the  place  where  the  tender  ought 


'ROPERTV. 

there  is  a  dis- 
id  the  ordinary 
he  distinction 
,  and  an  agrec- 
rticle  in  a  par- 
it  yet  in  exist- 
rs  of  the  same 
3  be  applied  in 
:h  have  a  fixed 
le  distinction  is 


y  for  ordinary  »^ 
i  contracted  to 
ndor  is  entitled 
the  goods,  but 
i  market  price 
e  contract  was 


.ire  of  a  partic-  ^| 
!cific  article  in 
re,  pattern,  or 
:n  he  has  fully 
d  or  offered  to 
o  contract,  and 

same,  he  may 
iidee  for  breach 

manufactured 

V  to  determine 
ises  quoted,  is 
y,  we  recognize 
being   correctly 

3  Ed.,  7S0],  in 
hts  of  the  buyer 
^s:  "The  gen- 
ler  a  contract  of 
le  buyer  refuses 
the  property  at 
he  tender  ought 


SHAWIIAX    V.  VAN-    NKST. 


6Ss 


to  be  and  is  made,   and  recover  the  contract  price  ;  or  he  may 
keep  it  at  the  buyer's  risk,   using  reasonable  diligence  to  pre- 
serve it,  and  recover  the  contract  price  and  expenses  of  proserv- 
in-  and   keeping  it ;  or  he  may  sell  it,  and   recover   from  the 
Liner  the  difference  l)etvvcen  the  contract  price  and  the  price 
;it  which  it  fairly  sold."     The  rule  as  thus  laid  down  was  first 
jHililished  in  1836,  two  years  after  the  decision  in  Iladley's  case, 
;il,ove  referred  to,  which  was  substantially  followed  by  .bulge 
Swan  in  laying  it  down.     It  does   not  appear  that   either  the 
decision  or  the  rule  as  laid   down  has  ever  been  questioned   in 
Oiiio.     It   will  be   perceived  that  Judge  Swan   lays  down  the 
rule  generallv  as  applicable  to  all  sales  of  chattels  in  the  ordi- 
nary'course  of  trade,  without  intimating  any  such  distinction  as 
tliat  drawn  in  Gordon  v.  Norris.     We  sanction  and  apply  the 
rule    in    the    determination  of  the   particular  case    before   us. 
When  the  plaintiff  below  had  completed  and  tendered  the  car- 
riiiije  in  strict   performance  of  the  contract  on  his  part,  if  the 
dcf'endant  below  had  accepted  it,  as  he  agreed  to  do,  there  is 
no  question  but  that  he  would  have  been  liable  to  pay  the  full 
contract  price  for  it,  and  he  can  not  be  permitted  to  place  the 
plaintiff  in  a  worse  condition  by  breaking  than  by  performing 
tlie  contract  according  to  its  terms  on  his   part.     When  the 
plaintiff  had  completed  and  tendered  the  carriage  in  full  per- 
formance of  the  contract  on  his  part,  and  the  defendant  refused 
to  accept  it,  he  had  the  right  to  keep  it  at  the  defendant's  risk, 
using  reasonable  diligence  to  preserve  it,  and  recover  the  con- 
tract price,  with  interest,  as  damages  for  the  breach  of  the  con- 
tract by  the  defendant.     Or,  at  his  election,  he  could  have  sold 
ilie  carriage  for  what  it  would  have  brought  at  a  fair  sale,  and 
have  recovered  from  the  defendant  the  difference  between  the 
contract  price  and  what  it  sold  for. 

The  court  below  did  not  err  in  refusing  to  give  to  the  jury 
the  special  instructions  requested  by  the  defendant  below. 

Motion  overruled. 

CovsuLT-Bement  V.  Smith,  15  Wend.  493;  Mason  v.  Decker,  7^-  N- 
Y  S95  28  Am.  Rep.  190;  Wade  v.  Moftatt,  21  111.  no,  74  Am.  Dec.  79; 
(iarrison  v.  Madigan,  15  Wis.  144,  82  Am.  Dec.  659  i  Putnam  v.  Gled- 
den,  159  Mass.  47. 


6S6       MODES  OF  OIITAININU  TITLE  TO  PERSONAL  I'KOl'EUTV. 


§  115.    Same-Re-sale. 

DUSTAX  V.  McANDREW. 

[44  X.  Y.  72.] 

CoDi  mission  of  Appeals  of  New  York,  1870. 

Action  for  breach  of  contract.  On  August  24,  1S60,  J.  S. 
&  W.  Brown,  of  the  city  of  Xevv  York,  executed  an  agreement 
with  the  phiintiff  as  follows:  "In  consideration  of  the  sum  of 
one  dollar,  the  receipt  of  which  is  hereby  acknowledged,  we 
have  sold  this  day  to  Mr.  John  F.  Dustan,  of  this  city,  one 
hundred  thousand  ijounds  of  first  sort  western  or  eastern  hops 
as  we  may  srlei  ih  of   1S60;  deliverable  in  the  city  of 

New  York,  ai  -  ■'P'  n,  during  the  months  of  October  or 
November,  loOi^,  at  seventeen  cents  per  pound,  subject  to  Mr. 
J,  S.  Brown's  inspection,  or  other  mutually  satisfactory.  Terms, 
cash  on  delivery,  f'  .  Du'!  •  's  name  to  be  made  satisfactory 
either  by  indorsement  or  by  t'  donobJt  of  $2,500  by  both  par- 
ties.    J.  S.  &  W.  Brown." 

On  September  7,  the  plaintiff  sold  this  contract  to  the  defend- 
ants, by  an  instrument  as  follows:  "In  consideration  of  the 
sum  of  one  dollar,  the  receipt  of  which  is  hereby  acknowledged, 
I  hr.ve  this  day  sold  to  McAndrew  &  Wann  the  contract  of  J. 
S.  &  W.  Brown,  dated  twenty-fourth  August,  i860,  for  one 
hundred  thousand  pounds  first  sort  hops,  western  or  eastern, 
growth  of  1S60;  upon  condition  that  the  said  McAndrew  & 
Wann  fulfill  the  conditions  of  said  contract  to  the  said  J.  S.  & 
W.  Brown,  and  pay  to  me,  in  addition,  on  delivery  of  the  hops, 
ten  and  one  half  cents  per  pound.  John  F.  Dustan.  New 
York,  September  7,  i860." 

On  November  28,  J.  S.  &  W.  Brown  notified  the  plaintiff 
by  letter  that  they  would  deliver  the  hops  pursuant  to  contract 
on  the  thirtieth  of  that  month ;  and  plaintiff  immediately,  on 
the  same  day,  notified  the  defendants  of  that  fact,  inclosing  to 
them  the  letter  of  J.  S.  &  W.  Brown ;  and  on  the  same  day  the 
said  J.  S.  &  W.  Brown  wrote  a  similar  letter  to  the  defendants. 
These  notices  actually  came  to  the  hands  of  the  defendants  on 
the  morning  of  the  thirtieth. 


'-■i 
I 


lOl'KKTV. 


DUSTAN    V.    MCANPKKW. 


687 


870. 

,  1S60,  J.  s. 
an  agreement 
jf  the  sum  of 
ivvledged,  we 
this  city,  one 

eastern  hops 
in  the  city  of 
af  October  or 
subject  to  Mr. 
:tory.  Terms, 
3e  satisfactory 

by  both  par- 

to  the  defend- 
eration  of  the 
jcknowledged, 
contract  of  J. 
i860,  for  one 
rn  or  eastern, 
McAndrew  & 
3  said  J.  S.  & 
ry  of  the  hops, 
Dustan.     New 

i  the  plaintiff 
ant  to  contract 
imediately,  on 
:t,  inclosing  to 
le  same  day  the 
the  defendants, 
defendants  on 


Prior  to  November  30  John  S.  Brown  had  inspected  the  hops 
and  put  his  brand  upon  them,  and  certified  that  they  were  such 
hops  as  the  contract  called  for.  On  November  30  J.  S.  c'v:  \V. 
IJiown  were  ready  and  willing  to  deliver  the  hops,  and  the 
delendants  were  requested  to  take  them,  and  they  declined  on 
the  sole  ground,  as  they  claimed,  that  they  had  not  had  an 
opportunity  to  examine  them  and  inspect  their  quality,  and 
because  Messrs.  Hrown  had  refused  to  let  an  inspector  whom 
ihov  sent  inspect  the  hops. 

On  December  24  the  plaintiff  took  the  hops  from  Messrs. 
Brown  and  paid  for  them,  and  on  the  same  day  wrote  the  fol- 
lowing letter  to  defendants :      "New  York,  December  24,  1860. 
Messrs.  McAndrew  &  Wann.     Gentlemen:     The  one  hundred 
tliousund  pounds  hops  mentioned   in  contract   of  J.    S.    &  W. 
Brown  with  me,  of  twenty-fourth  August,  1S60,  and  in  contract 
of  yourselves  with  me  of  seventh  September,  i860,  are  now  at 
the  store  No.  4  Bridge  street,   awaiting  the  fulfillment  by  you 
of  the  terms  of  your  contract,  and  I  hereby  tender  to  you  the 
said  hops,  and  demand  from  you  the  payment  of  the   sum  of 
$27,500,  the  amount  of  such  contract  price.     Unless  you  com- 
ply with  the  terms  of  said  contract   on   or  before  the   twenty- 
sixth  day  of  December,  instant,  I  will  proceed  to  sell  the  same 
on    your    account    and    hold    you    for   any    deficiency.     Your 
obedient  servant,  John  F.  Dustan." 

Defendants  still  declined  to  take  the  hops,  and  then  on 
December  26  plaintiff  placed  them  in  the  hands  of  a  hop  broker 
who  sold  them  for  twenty  cents  per  pound. 

The  plaintiff  also  gave  evidence  that  on  November  30  and  on 
December  26  twenty  cents  per  pound  was  the  fair  market  value 
of  the  hops;  and  the  defendants  gave  evidence  that  on  both  o£ 
these  days  the  market  value  was  some  cents  higher.  There 
w  as  also  evidence  showing  that  hops  had  a  downward  tendency 
in  market  all  through  the  month  of  December.  It  was  shown 
that  the  hops  in  all  respects  answered  the  contract.  Judgment 
for  plaintiff. 

Earl,  C— The  contract  required  that  the  hops  should  be 
inspected  by  J.  S.  Brown,  or  some  other  inspector  satisfactory 
to  both  parties.  In  case  J.  S.  Brown  could  not  or  should  not 
inspect  them  for  any  reason,  then  they  were  to  be  inspected  by 


M()I>KS  OF  Onr.MNINO  TITLE  TO  PKKSONAL  PROPERTV. 


6SS 

some  other  person  mutually  satisfactory.  Neither  party  had 
the  rif,'ht  to  demand  any  other  inspector,  unless  lirown  neg- 
lected or  refused  to  inspect.  It  is  doubtless  unusual  to  insert  :i 
stipulation  in  contracts  that  the  vendor  shall  inspect  the  goods 
sold.  Uut  where  parties  agree  to  this  they  must  be  bound  by 
their  contract,  and  it  must  be  construed  the  same  as  if  some 
other  person  had  been  chosen  inspector. 

It  is  claimed  on  the  part  of  respondent,   and  was  held  by  the 
court  below,   that  the   inspection   provided   for    was    intended 
simply  for  the  convenience  of  the  vendors,   to  enable  them  to 
perform  their  contract,  and  that  it  merely  furnished /;-m«/(r«V 
evidence  that  the  hops  answered  the  contract,   and    that   the 
inspection  was   not   conclusive    upon    the    parties.     I  can  not 
assent  to  this.      The  contract  was  for  the  sale  and  purchase  of 
hops  of  a  certain  description,  and  the  object  of  the  inspection 
was  to  determine  for  the  benefit  of  both  parties  whether  they 
answered    that  description.     Until    the   vendors   delivered   the 
hops  with  the  inspection,  the  vendee  was  not  obliged  to  pay, 
and  when  so  delivered,  the  vendors  were  entitled  to  the  purchase 
price.     The  inspection  was  thus  as  much  for  the  convenience 
and  benefit  of  one  party  as  the  other.     Its  purpose,  like  similar 
provisions  in  a  varietv  of  contracts,  was  to  prevent  dispute  and 
litigation  at  and  after  performance.     But  if  the  inspection  was 
merely  for  the  convenience  of  the  vendors,  then  they  could  dis- 
pense with  it,  and  compel  the  vendees  to  take  the  hops  without 
any  inspection  whatever.     And  if  it  was  merely  frima  facie 
evidence  of  the  quality  of  the  hops,   then  it  was  an  idle  cere- 
mony, because,  not  being  binding,  the  vendee  could  still  dispute 
the  quality  of  the  hops,  refuse  to  take  them,  and  show,  if  he 
could,  when  sued  for  not  taking  them,  that  they  did  not  answer 
the  requirements  of  the  contract ;    and  thus  the  plain  purpose 
for  which  the  provision  was  mserted  in  the  contract  would  be 

entirely  defeated. 

The  inspection  could  be  assailed  for  fraud,  or  bad  faith  in 
making  it,  and  perhaps  within  the  case  of  McMahon  v.  New 
York  &  Erie  R.  Co.,  20  N.  Y.  463,  because  made  with- 
out notice  to  the  vendee.  The  inspection  here  was  made 
without  notice;  but  it  is  not  necessary  to  determine  whether 
this  renders  it  invalid,  as  no  such  defense  was  intimated  in  the 
answer  or  upon  the  trial. 


OPERTY. 

Dr  party  had 
lirown  ncg- 
al  to  insert  ii 
ct  the  cjoods 
he  bouiul  by 
le  as  if  some 

s  held  by  the 
vas  intended 
nble  them  to 
1  prima  facie 
uul  that  the 
i.     I  can  not 

purchase  of 
he  inspection 
whether  they 
delivered  the 
iliged  to  pay, 
»  the  purchase 
;  convenience 
c,  like  similar 
it  dispute  and 
nspection  was 
liey  could  dis- 
:  hops  without 
7  prima  facie 

an  idle  cere- 
Id  still  dispute 
d  show,  if  he 
lid  not  answer 
plain  purpose 
ract  would  be 

)r  bad  faith  in 
lahon  V.  New 
e  made  with- 
;re  was  made 
rmine  whether 
iitimated  in  the 


DISTAN    V.   MCANUKKW, 


689 


Hy  the  purchase  of  the  contract  the  defendants  were  substi- 
tuted, as  to  it-,  performance,  in  the  i)lace  of  tin-  vendee  therein 
ninned,  and  were  bound  to  do  all  that  he  had   a<,Meed  to  do  or 
was  liound  in  law  to  do.     When   notified   that   the   hops   were 
iiady  for  <leli\iiy  they  detlined  to  take    them,    upon   the   sole 
ground  that  tiicy  had  not   had   an   opportunity  to  examine  or 
inspect  them  ;   and  they  claimed  that  they  had  sent  one  Smitii 
to  inspect  them,  and  that  he  had  been  declined  permission  to 
inspect  them.      There  was  no  proof,   however,   that  they  ever 
tiled  to  examine  or  inspect  the  hops,  or  that  the  vendors    ever 
refused  to  permit  them  to  examine  or  inspect  them.     They  sent 
Smith  to  inspect  them,  and  he  went  to  one  of  the  several  store- 
houses where  soine  of  the  hops  were  stored,  and  he  says  he  was 
tliere    refused    an    opportunity  to  inspect  them  by  Mr.  A.  A. 
r.roun.     Hut   there    is   no    proof  that  he  was  in  any  svay  con- 
nected with  the  vendor,  or  that  he  had  any  agency  or  authority 
wliatever  from  them.     There  was  no  proof  that  defendants  ever 
tried  with  the  vendors  to  agree  upon    any    other    inspector,  or 
tliat  they  ever  asked  the  vendors  to  have  the  hops  inspected  by 
iiny  other  inspector,  and  they  made  no  complaint  at  any  time 
that  they  were  inspected  without    notice    to    them.      The  point 
tliat  they  should  have  had  notice  of  the  inspection  was  not  taken 
in  the  motion  for  a  nonsuit,    nor    in  any  of  the  requests  to  the 
court  to  charge    the   jury.     If  the  point  had  been  taken  in  the 
answer  or  on  the  trial,  the  plaintiff  might  perhaps  have  shown 
that  notice  was  given  by  the  vendors,  or  that  it  was  waived. 

Hence  we  must  hold,  upon  the  case  as  presented  to  us,  that 
there  was  no  default  on  the  part  of  the  plaintiff  or  the  vendors, 
and  that  the  defendants  were  in  default  in  not  taking  and  pay- 
ing for  the  hops.  The  only  other  question  to  be  considered  is 
whether  the  court  erred  in  the  rule  of  damages  adopted  in 
ordering  the  verdict. 

The  court  decided  that  the  plaintiff  Was  entitled  to  recover 
the  difference  between  the  contract  price  and  the  price  obtained 
h\  the  plaintiff  upon  the  resale  of  the  hops,  and  refused,  upon 
the  request  of  the  defendants,  to  submit  to  the  jury  the  question 
as  to  the  market  value  of  the  hops  on  or  about  the  thirtieth  day 
nf  November. 

The  vendor  of  personal  property  in  a  suit  against  the  vendee 
tur  not  taking  and  paying  for  the   property,    has   the    choice, 
44 


690       MOPES  OF  OIITAININO  TITl.K   TO  PHtlSOMAI.  moPKIlTV. 

ordinarily,  of  eitlicr  one  of  three  metlioils  to  indemnify  himself. 
(i)  He  may  store  or  retiiin  the  property  for  the  vendee,   and 
sue  him  f..r  the  entire    purchase    price;     (2)   He  m.ny  sell   the 
property,  acting  as  the  agent,  for  this  purpose,    of  the  v.-ndee, 
and  recover  the  difference   between    the  contract  price  and  the 
price  obtained  on  such  resale;     or  (3)   He  may  keep  the  prop- 
erty as  his  own,  and  recover  the  difference  between  the  market 
price  at  the  time  and  place  of  delivery  and  the   contract  price, 
a  Pars.  Cont.  484;  Sedgw.  Dam.  28:;     Lewis  v.   (ireider,  49 
Barb.  r,o6;  Pollen  v.  Le  Roy,  30  N.  Y.  549.     In  this  case  the 
plaintiff  chose  and  the  court  applied  the  second  rule  above  men- 
tioned.    In  such  case  the  vendor  is  treated  as  the  agent  of  the 
vendee  to  make  the  sale,  and  all  that  is  required  of  him  is  that 
he  should  act  with  reasonable  care  and  diligence,  and  in  good 
faith.     He   should  make  the  sale  without  unnecessary   delay, 
but  he  must  be  the  judge  as  to  the  time  and  place  of  sale,  pro- 
vided he  act  in  good  faitii  and  with  reasonable  care  and  dili- 
gence.    Here  it  is  conceded   that  the  sale  was  fairly  made ;   it 
was  made  in  the  city  o£  New  York,  in  less  than  one  month  from 
the  time  the  defendants  refused  to  take  the  hops.     It  was  not 
claimed  on  the  trial  that  the  delay  was  unreasonable,   and  we 
can  find  nothing  in  the  case  to  authorize  us  to  hold  that  it  was 
unjustifiable.     We  are  therefore  of  the  opinion   that  the   court 
did  not  err  as  to  the  rule  of  damages. 

The  judgment  should  therefore  be  affirmed,  with  costs. 

For  affirmance:  Lott,  C.  C  ;  Earl  and  Hunt,  CC. 
Gray,  C,  dissented  on  the  ground  that  the  delay  in  selling  was 
too  great.     Leonaud,  C,  did  not  vote. 

Judgment  affirmed,  with  costs. 

.  CoNsuLT-Rosenbaum  V.  Welden,  18  Gratt.  785,  98  Am.  Dec.  737; 
Patten's  Appeal,  45  I'a-  St.  151,  84  Am.  Dec.  479!  Van  Horn  v.  Rucker, 
33  Mo.  391,  84  Am.  Dec.  52;  Rickey  v.  Ten  Brock,  63  Mo.  567;  Sands 
V.  Taylor,  5  Johns.  395,  4  Am.  Dec.  374;  West  v.  Cunningham,  9  Port. 
104,  33  Am.  Dec.  300;  Saladin  v.  Mitchell,  45  "l-  79:  Pollen  v.  Le  Roy. 
30  N.  Y.  549;  Girard  v.  Taggart,  5  S.  &  R.  32,  9  Am.  Dec.  327. 


Ol'EllTY, 


MODKS  OK  OBTAINING  TITLE  TO  PERSONAL  I'ttOl'EKTV.       6yl 


nify  himself, 
vendee,    mul 
m.ny  sell   the 
f  the  v«'ii(lee, 
price  and  the 
;ep  the  prop- 
11  the  market 
)ntract  price. 
,   (Jreider,  49 
this  case  the 
e  above  mcn- 
;  agent  of  the 
of  him  is  that 
,  and  in  good 
essary   delay, 
of  sale,  pro- 
care  and  dili- 
irly  made ;    it 
le  month  from 
3.     It  was  not 
able,    and  we 
)ld  that  it  was 
hat  the   court 

th  costs. 

Hunt,   CC. 

r  in  selling  was 

;d,  with  costs. 

Am.  Dec.  737; 
Horn  V.  Rucker, 
Mo.  567;  Sands 
ingham,  9  Port, 
ollen  V.  LeRoy, 
•ec.  327. 


§116.    Sume    Action  for  damaj?e8. 

IIOS.MKR  V.  WILSON. 

[7  Mich.  294;  74  .\m.  Dec.  716,] 
Supreme  Court  of  Mic/iigaii,   18 jg. 

Assumpsit  by  John  R.  Wilson  against  Rufus  Ilosmcr  and 
another  "for  work  and  labor  done,  and  services  jndcied,  and 
materials  furnished  by  plaintiff  and  his  servants  for  defendants, 
all  at  request  of  said  defendants."  Judgment  for  pi -intiff, 
and  defendants  bring  error.     Reversed. 

It  appeared  that  one  of  defendants  had  called  at  plaintiff's 
foundry,  and  there  signed  a  written  order  for  an  engine,  to  be 
paid  for  when  taken  out  of  the  shop,  and  tliat  plaintiff's  clerk 
accepted  the  order;  that  plaintiff  then  proceeded  to  make  such 
engine,  and  only  stopped  when  he  received  a  letter  from  defend- 
ants countermanding  the  order. 

CimisTiANCY,  J. — Whether  the  written  memorandum  signed 
by  the  defendants  below,  when  taken  in  connection  with  the 
whole  transaction  between  the  parties,  was  understood  by  all 
of  them  as  a  contract,  might  have  been  a  fair  question  of  fact 
for  the  jury.  But  .admitting  the  contract  to  have  been  proved 
in  all  respects  as  claimed  by  the  plaintiff,  and  that  defendants 
below  wrongfully  countermanded  the  order  for  the  engine,  after 
the  plaintiff  had  in  good  faith  made  most  of  the  castings  and 
done  a  large  part  of  the  work,  the  first  question  which  arises  is 
whether  the  plaintiff  was  entitled  to  recover  upon  the  common 
counts  for  work  and  labor  as  upon  a  quantnm  meruit?  As  to 
the  materials  it  is  admitted  he  could  not,  though  contained  in 
the  same  count,  as  they  still  belonged  to  plaintiff  and  were 
never  delivered  to  defendants. 

-  In  the  case  of  a  contract  for  a  certain  amount  of  labor,  or  for 
svork  for  a  specified  period — when  the  labor  is  to  be  performed 
on  the  materials  or  property,  or  in  carrying  on  the  business  of 
the  defendant,  or  when  the  defendant  has  otherwise  accepted 
or  appropriated  the  labor  performed,  if  the  defendant  prevent 
the  plaintiff  from  performing  the  whole,  or  wrongfully  dis- 
charge him   from  his   employment,   or  order  him  to  stop  the 


r.< 


y- 


MdDTS  OK   OIITAININC;    1111. K    lO  IM.lisoNAL  I'UlU'ICKTY. 


Nvoik,  01-  lefnso  to  pay  as  be  has  afirecd  (nvIumi  payments 
bfcmc  tliu-  ill  tin-  pm-iv>s  of  llie  work),  or  disahlc  liimsclf 
fit)in  pcrlorminj,',  or  uiiqiialitk-dly  refuse  to  perform  his  part  of 
llic  contract,  the  phiintiff  may.  without  further  performance, 
elect  to  sue  upon  the  contract  and  recover  (hima-;es  for  the 
breach,  or  treat  the  contract  as  at  an  end,  and  sue  in  <j;eiieral 
assumpsit  for  the  work  and  labor  actually  performed.  Hall  v. 
Ruplev,  lo  Hair,  2;,i  ;  Moulton  v.  Trask,  9  Mete.  579;  Derby 
V.  Johnson,  2\  \t.  .:  i  ;  Canada  v.  Canada,  6  Cush.  i^^;  Dra- 
per  V.   Ua.idolpli.    4  llarriu<,'tou,  454;    Webster  v.  Enlield,  5 

Gilm.  2ijS. 

And  in  such  cases  he  may,  it  would  seem,  under  the  common 
indebitatus  count,  recover  the  contract  price,  where  the  case  is 
such  that  the  labor  done  can  be  measured  or  apportioned  by 
the  contract  rate,  or  whether  it  can  be  so  apportioned  or  not, 
he  may  under  the  quantum  meruit  recover  what  it  is  reasonably 
worth.  But  in  all  such  cases  the  plaintiff,  having  appropriated 
and  received  the  benefit  of  the  labor  (or  what  is  equivalent, 
bavins  induced  the  plaintiff  to  expend  his  labor  for  him,  and 
if  pro^pcrly  performed  according  to  his  desire,  the  defendant 
bch^s  estopped  to  deny  the  benefit),  a  duty  is  imposed  upon 
the  defendant  to  pay  for  the  labor  thus  performed.  This  duty 
the  law  enforces  under  the  fiction  of  an  implied  contract  grovy- 
ing  out  ^f  the  reception  or  appropriation   of   the   plaintiff's 

labor. 

It  is  therefore  evident,  first,  that  in  all  the  cases  supposed,  an 
implied  contract  would  have  arisen  and  the  plaintiff  might  have 
recovered  upon  a  quantum  meruit  if  no  special  contract  had 
ever  been  made  ;  second,  that  in  the  like  cases  (where  the  value 
of  the  work  done  could  not,  as  it  probably  could  not  in  the  case 
before  us,  be  apportioned  by  the  contract  price),  the  value  or 
fair  price  of  the  work  done  would  necessarily  constitute  the 
true  measure  of  damages.  And  in  all  such  cases,  as  first  sup- 
posed, either  the  contract  price  or  the  reasonable  worth  of  the 
labor  done,  would  measure  the  damages. 

Similar  considerations  and  like  rules  would,  doubtless,  equal- 
ly apply  to  contracts  for  furnishing  materials  and  for  the  sale 
and  delivery  of  personal  property,  when,  after  part  of  the  ma- 
terials cr  property  has  been  received  and  appropriated  by  or 
vested  in  the  defendant,  he  has  prevented  the  plaintiff  from 


I'KUT 


nOSMiai    V.   WII.soN. 


^93 


]ia\  moiits 


l)lc  liimsclE 
his  pari  of 
rformancc, 
;C8   for   tlie 

in  ^oiu-ral 
1.  Hall  V. 
579;  Derby 
.15;    Oia- 

Enlickl,  5 

he  common 
the  case  13 
ortioned  by 
incd  or  not, 
i  reasonably 
ppropriated 
equivalent, 
or  him,  and 
B  defendant 
iposed  upon 
This  duty 
itract  grovv- 
e   plaintiff's 

upposed,  an 
E  might  have 
:ontract  had 
;re  the  vahie 
It  in  the  case 
the  value  or 
onstitute  the 
as  first  sup- 
A^orth  of  the 

btless,  equal- 
l  for  the  sale 
rt  of  the  ma- 
jriated  by  or 
Dlaintiff  from 


performing;,  or  autliori/in^j;  him  to  treat  llie  contract  as  at  an  end, 
on  any  of  the  j^rounds  above  mentioned. 

Hut  the  (.ase  before  us  stands  upon  very  different  grouiids. 
lli're  tlu"  i.<.ntrai.t,  as  claimed  to  have  been  proved,  was  in  no 
just  sense  a  contrait  tor  work  and  labor,  nor  could  the  plaintitt, 
will  vork  upon  the  en<,'iue,  be  properly  said  to  be  engaged 

in  t  siness  of  the  defendants.      It  was  substantially  a  con- 

tract for  the  sale  of  an  engine,  to  be  made  anil  furnished  by  the 
plaintiff  to  the  defendants,  from  tlie  shop,  and,  of  cour.sc,  from 
the  materials  of  the  plaintiff,  i'lie  defendants  had  no  interest 
in  the  materials,  nor  any  concern  with  the  amount  of  the  ,  I'ur. 
Thev  were  to  pay  a  certain  price  for  the  engine  wlion  com- 
pleted. I'ligines,  it  is  tnn\  are  not  constructed  without  labor; 
the  labor,  therefore,  constitutes  part  of  the  value  of  the  engine. 
l}ut  this  would  have  been  equally  true  if  the  contract  in  this 
case  had  been  for  an  engine  already  completed. 

The  labor  of  the  plaintiff  was  upon  his  own  materials  to  in- 
crease their  value,  for  the  purpose  of  effecting  a  sale  to  defend- 
ants when  completed.  No  title  in  any  part  of  the  materials 
was  »^o  vest  in  defendants  till  the  whole  should  be  completed 
by  itiff  and  delivered  to  defendants.     The  plaintiff  might 

hi  1  any  of  the  materials  after  the  work  was  performed, 

or  the  whole  engine  when  completed,  at  any  time  before  deliv- 
ery to  or  acceptance  by  defendants. 

Whether,  therefore,  the  labor  actually  performed  on   these 
materials,  when  the  defendants  refused  to  go  on  with  the  con- 
tract, or  prevented  the   further   performance,  had  enhanced  or 
diminished  the  value  of  the  materials,  and  how  much,  would 
be  a  necessary  question  of  fact,  m  arriving  at  any  proper  meas- 
ine  of  damages.      The  value  of  the  work  and  labor  docs  not, 
therefore,  in  such  a  case,  constitute  the  proper  criterion  or  meas- 
ure of    damages.       If    the  value  of    the   materials  has    been 
enhanced  by  the  labor,  the  plaintiff,  still  owning  the  materials, 
has  already  received  compensation  to  the  extent  of  the  increased 
value ;   and  to  give  him  damages  to  the  full  value  of  the  labor 
would  give  him  inore  than  a  compensation.     If  the  value  of 
the   materials   has   been   diminished,    the   value    of  the  labor 
would  not  make  the   compensation  adequate   to   the  loss.     It 
would  be  only   in  the   single   case  where  the  materials  have 
neither  been  increased  nor  diminished  by  the  labor,  that    the 


694      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 

value  of  the  labor  would  measure  the  damages.  Such  a  case 
could  seldom  occur,  and  whether  it  could  or  not,  it  must  always 
be  a  question  of  fact  in  the  case,  whether  the  value  of  the 
materials  docs  remain;  the  same,  or  whether  it  has  beon  in- 
creased or  diminished,  and  to  what  extent. 

Again,  as  the  defendants  never  received  the  engine,  nor  any 
of  the  materials,  the  title  and  possession  still  remained  in  the 
plaintiff,  and  the  defendants  never  having  received  or  appro- 
priated the  labor  of  the  plaintiff,  if  the  same  work  had  been 
performed  under  the  like  circumstances,  without  any  actual  or 
special  contract,  the  law  would  have  imposed  no  duty  upon 
the  defendants,  and  therefore  implies  no  contract  on  their  part 
to  pay  for  the  work  done,  i  Chit.  PI.  3S2  ;  Atkinson  v.  Bell, 
S  IJ.  &  C.  277;   Allen  v.  Jarvis,  20  Conn.  3S. 

The  only  contract,  therefore,  upon  which  the  plaintiff  can 
rely  to  pay  him  for  the  labor,  is  the  special  contract.  No  duty 
is  imposed  upon  the  defendants  otherwise  than  by  this.  This 
contract,  therefore,  must  form  the  basis  of  the  plaintiff's 
action.  He  must  declare  upon  it,  and  claim  his  damages 
for  the  breach  of  it,  or  for  being  wrongfully  prevented  from 
pertorming  it.  His  damages  will  then  be  the  actual  damages 
whi..h  he  has  suffered  from  the  refusal  of  the  defendants  to 
accept  the  articles,  or  in  consequence  of  being  prevented  from 
its  performance;  and  these  damages  may  be  more  or  less  than 
the  value  of  the  labor.  This  case,  therefore,  in  this  respect, 
comes  directly  within  the  principle  recognized  in  the  case  of 
Atkinson  v.  Bell,  above  cited,  and  in  Allen  v.  Jarvis,  20  Conn. 
3S  (a  well  reasoned  case  which  we  entirely  approve).  And 
see  Moody  v.  Brown,  34  Me.  107,  where  the  same  principle  is 
recognized. 

But  it  was  claimed  by  plaintiff's  counsel  that  no  action  could 
have  been  maintained  on  the  special  contract  until  fully  per- 
formed, and  the  engine  delivered  or  tendered  to  the  defendants; 
that  the  unqualified  refusal  of  the  defendants  to  take  the  engine, 
when  it  should  be  completed,  was  not  a  prevention  of  perform- 
ance which  would  authorize  the  plaintiff  to  sue  upon  the  con- 
tract on  that  ground.  We  think  it  was,  and  that  such  absolute 
refusal  is  to  be  considered  in  the  same  light,  as  respects  the 
plaintiff's  remedy,  as  an  absolute,  physical  prevention  by  the 
defendants.     This  view  will   be   found   fully   sustained  by  the 


L  PROPERTY. 

es.  Such  a  case 
t,  it  must  always 
the  value  of  the 
•  it  has  beon  in- 

engine,  nor  any 
1  remained  in  the 
ceived  or  appro- 
le  work  had  been 
out  any  actual  or 
ed  no  duty  upon 
act  on  their  part 
(Atkinson  v.  Bell, 

the  plaintiff  can 
ntract.  No  duty 
an  by  this.  This 
)f  the  plaintiff's 
im  his  damages 
!  prevented  from 
e  actual  damages 
he  defendants  to 
g  prevented  from 
more  or  less  than 
!,  in  this  respect, 
:d  in  the  case  of 
,  Jarvls,  20  Conn, 
approve).  And 
same  principle  is 

at  no  action  could 
t  until  fully  per- 
to  the  defendants; 
o  take  the  engine, 
LMition  of  perform- 
iue  upon  the  con- 
that  such  absolute 
it,  as  respects  the 
prevention  by  the 
sustained  by  the 


HOSMER    V.  WILSON. 


695 


following  ';     Cort  v.  Ambcrgate  Railway  Co.,  6  E.  L.  & 

Eq.  330;  --.oy  V.  Johnson,  21  Vt.  21;  Clarke  v.  Marsiglia, 
1  Dcnio,'3i7;  Hochster  v.  De  Latour,  30  E.  L.  &  Eq.  157.  In 
the  latter  case,  it  was  held  that  a  refusal  of  the  employer  before 
the  work  commenced,  to  allow  it  to  be  done,  authorized  an  im- 
mediate action  upon  the  contract. 

So,  a  refusal  to  make  any  payment,  which,  by  the  contract, 
is  to  be  made  during  the  progress  of  the  work,  has  the  same 
effect.  Draper  v.  Randolph,  above  cited ;  and  see  Hoagland 
V  Moore,  3  Blackf.  167;  Webster  v.  Enfield,  5  Gilm.  398; 
Withers  v.  Reynolds,  3  B.  &  Ad.  883.  See  this  whole  sub- 
icct  ablv  discussed,  and  the  authorities  cited,  in  3  Smith's  Lead. 
Cas.  [Am.  Ed.]  22  to  38;  and  for  what  will  amount  to 
prevention,  see  note  of  Hare  &  Wallace  to  same,  40.  As  to 
mode  of    declaring  on  the  contract:     Ibid.   41,   and   i   Chit. 

ri.  326. 

It  would  be  unreasonable   and  unjust  to  hold  that  the  plain- 
tiff, in  this  case,  after  the  positive  countermand  of  the  defend- 
ants'order,  was,  neverthel'-       '^ound   to  go  on   and   complete 
the  engine,  and  thereby  Increuce  the  damages,  before  he  could 
recover  for  the  work  already  done.     Tiie  defendants  can  not 
complain  that  the  plaintiff  has  given   credit  to  their  assertion. 
The  law  will  not  require  a  vain  thing.     And  it  is  certainly,  in 
sudi  cases,  much  better  for  both  parties  to  hold  the  party  thus 
notified  to  be  fullv  justified  in  stopping  the  work,  as  it  lessens 
the  damages  the  other  party  has  to  pay,  and  relieves  the  party 
who  has  to  do  the  work  from  expending  further  labor,   for 
which  he  has  fair  notice  he  is  to  expect  no  payment.     And  it 
is  certainly  vf-y  questionable  whether  the  party  thus  notified 
has  a  right  to  go  on  after  such  notice,  to  increase  the  amount 
ot  his  own  damages.      In  Clarke  v.  Marsiglia,  above  cited,  it 
was  held  he  had  no  such   right,   and   that  the   employer  has  a 
right  (in  a  contract  for  work  and  labor.)  to  stop  the  work,  if  he 
ciroosc,  subjecting  himself  to  the  consequences  of  a  breach  of 
his  contract,  and  that  the  workman,  after  notice  to  quit  work, 
lias  no  right  to  continue  his  labor,  and  recover  pay  for  it.  This 
doctrine   is  fully   approved   in  Derby  v.  Johnson,  above  cited. 
This  would  seem  to  be  good  sense,  and,  therefore,  sound  law. 
And  it  would  seem  that  any  other  rule  must  tend  to  the  injury, 
and,  in  many  cases,  to  the  ruin  of  all  parties. 


6<)G 


MODKS  OF  OBTAINING  TITLE  TO  PERSONAL  PROPERTY. 


It  is  unnecessary  here  to  review  the  authorities  cited  by  the 
phuntiffs  counsel.  Most,  if  not  all  of  them,  %vhen  carefully 
examined,  will  be  found  entirely  in  harmony  with  the  views 
above  expressed.  The  result  of  them  will  be  found  well  and 
fairly  stated,  and  evidently  from  a  careful  examination,  m  Allen 
V.  Jarvis,  above  cited.  I  have  made  the  same  exammation, 
and  come  to  the  same  result. 

It  mav,  however,  be  proper  here  to  say,  that  in  the  case  of 
Planche  v.  Colburn,  S  Bing.  M,  upon  which  much  reliance 
was  placed  by  the  counsel  for  the  defendant  in  error,  there  was 
a  special  count  upon  the  contract,  as  well  as  the  common 
counts,  and  it  may  be  inferred  from  the  opinion  that  the  plain- 
tiff was  .illowed  to  retain  his  verdict  upon  the  special  count. 
And  we  have  the  high  authority  of  Lord  Campbell  that  such 
was  the  case.  See  Hochster  v.  Dc  Latour,  20  E.  L.  &  Ecj. 
163.  above  cited.  As  the  conclusion  at  which  we  have  arrived 
upon  this  point  disposes  of  the  whole  case,  it  becomes  unneces- 
sary, and  evt:n  improper,  to  discuss  the  other  questions  raised 

in  the  case. 

And,  as  we  do  not  conceive  that  under  a  writ  of  error  we 
have  any  power  to  amend  the  declaration  in  this  respect,  the 
judgment  must  be  reversed. 

The  other  justices  concurred. 

CoNSULT-McConihev.  R.  Co.,  20  N.  Y.  495,  75  Am.  Dec.  420;  At- 
wood  V.  Lucas,  53  Me.  50S,  89  Am.  Dec.  713!  Central  Lith.  Co.  v. 
Moore,  75  Wis.  170;  Moody  v.  Brown,  34  Me.  107,  56  Am.  Dec.  640; 
Ha  una  v.' Mills,  21  Wend.  90,  34  Am.  Dec.  216;  Girard  v.  Taggart,  5 
S.  &  R.  19,  9  Am.  Dec.  327. 


§  117.    Same— The  seller's  lien. 

■       ARNOLD  V.  DELANO. 

[4Cush.  33.] 

Supreme  Judicial  Court  of  Massachusetts,  Scptemler    Term, 

1849- 

This  was  an   action   of  trover,  brought   by    the    plaintiff  as 
the  assignee  of  Arthur  Sowerby,  an  insolvent  debtor,  and  was 


UOPERTY 


ARNOLD    V.  UELANO. 


697 


i  cited  by  the 
,hen  carefully 
ith  the  views 
unci  well  and 
ition,  in  Allen 
examination, 

in  the  case  of 
much  reliance 
ror,  there  was 
the  common 
that  the  plain- 
special  count. 
>bcll  that  such 
>  E.  L.  &  Eq. 
e  have  arrived 
omcs  unneces- 
Liestions  raised 

lit  of  error  we 
is  respect,  the 


in.  Dec.  420;  At- 
tral  Lith.  Co.  v. 
6  Am.  Dec.  640; 
rd  V.  Taggart,  5 


btemlcr   Term, 


the    plaintiff  as 
lebtor,  and  was 


submitted  to  the  court  of  common  pleas  upon  the  following 
a<;rced  statement  of  facts: 
"on  the  thirtieth  day  of  March,  iS4S,Sowerby  and  one  Grant, 
who  were  paiu.crs  as  silk  manufacturers,  in  Northampton,  pur- 
chased of  Delano,  the  defendant,  sixty-five  cords  of  wood,  then 
piled  with  a  much  larger  quantity  on  Del.ano's  laud.  The 
wood  sold  was  measured  off  at  the  time  of  the  sale,  but  not 
otherwise  separated  from  the  residue,  than  by  means  of  a  stake 
put  down  to  designate  the  extent  of  sixty-five  cords.  The  con- 
tract was  made  with  Sowerby,  and  a  bill  of  the  wood  was  given 
him  by  Delano,  as  follows: 

"Messrs.  Sowerby  &  Grant.  Bo't  of  C.  Delano.  1S4S, 
March  30th.  65  cords  wood,  $97.00.  Received  payment  by 
note  at  6  mos.  at  Northampton  Bank.     C.  Delano." 

At  the  time  of  making  the  contract,  there  was  no  formal 
taking  possession  or  delivery  of  the  wood,  except  as  above 
stated,  but  the  purchasers  were  to  remove  the  same  before  the 

first  of  April,  1S49. 

On  the  twenty-ninth  of  June,  184S,  Sowerby  applied  person- 
ally for  the  benefit  of  the  insolvent  law,  and  a  warrant  was 
accordingly  issued  to  Ansel  Wright,  as  messenger,  on  the  same 
day.  Possession  was  taken  of  the  property  at  the  silk  works 
by  the  messenger  on.  the  thirtieth  of  June,  and  a  schedule  of 
assets  was  furnished  him  by  Sowerby  on  the  same  day.  On 
the  schedule  was  the  following  entry,  in  the  handwriting  of  the 
messenger:  "65  cords  of  wood  on  C.  Delano's  land."  No 
formal  possession  was  taken  of  the  wood  by  the  messenger; 
nor  was  any  entry  made  by  him  on  the  land  where  it  was  piled, 
which  was  distant,  in  fact,  two  miles  or  more  from  the  silk 
works.  On  the  fifteenth  of  July,  Sowerby  furnished  a  sched- 
ule of  creditors,  on  which  was  this  entry:  "Cornelius  Delano, 
Northampton.     Note.     Wood.     No  security.     $97." 

On  the  evening  of  Saturday,  the  first  of  July,  Delano,  hav- 
ing heard  of  the  insolvent  proceedings,  gave  the  messenger 
uoHce  that  the  wood  had  not  been  paid  for,  and  that  he  claimed 
tu  hold  it,  until  the  price  should  be  paid.  Delano  also  saw 
Sowerby  the  same  evening,  and  requested  him  to  give  up  the 
hill  and  take  the  note.  Sowerby  took  until  the  next  Monday 
morning  for  consideration,  and  being  then  applied  to,  gave  up 
ilie  bill  to  Delano,  who  thereupon  canceled  the  note.    The  first 


69S      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROrERTY. 

publication  of  notice  of  the  insolvency  did  not  take  place  until 
Monday  afternoon. 

On  the  seventeenth  of  June,  1S48,  Sowerby  and  Grant  ad- 
vertised a  dissolution  of  partnership,  and  gave  public  notice 
that  Sowerby  was  duly  authorized  to  settle  all  accounts  of  the 
late  firm.  As  a  part  of  the  terms  of  dissolution,  Sowerby  un- 
dertook to  pay  all  the  partnership  debts,  and  Grant  conveyed  to 
him  all  his  right  and  title  in  and  to  the  partnership  property, 
but  this  convevance  was  not  known  to  Delano.  At  the  time  of 
the  dissolution,  the  partners,  severally,  as  well  as  the  partner- 
ship,  were,  in  fact,  deeply  insolvent.  ,     .     ^  ,  , 

The  plaintiff  was  appointed  assignee  of  Sowerby  in  October, 
184S;  the  first  meeting  of  creditors  having  been  continued  on 
account  of  certain  legal  objections;  and  the  assignment  was 
then  first  made  by  the  commissioner. 

To  the  demand  made  by  the  assignee  on  Delano  for  the  wood, 
Delano  answered  that  he  could  have  it  whenever  he  paid  for 
if  and  Delano  has  always  been  willing  to  give  up  the  wood 
upon  payment  of  the  price.  Subsequent  to  the  first  of  April, 
1849,  Delano  sold  a  portion  of  the  wood  measured  off;  but 
there  has  always  remained  in  the  same  lot  more  than  sixty-five 
cords  of  similar  quality,  of  which  he  has  offered  to  give  up  that 
amount,  upon  payment  of  the  price  agreed  upon. 

Upon  the  foregoing  statment  of  facts,  the  court  of  common 
pleas  gave  judgment  for  the  plaintiff,  whereupon  the  defendant 
appealed  to  this  court. 

The  case  was  argued  in  writing,  as  follows,  on  the  points 

considered  by  the  court. 

Shaw,  C.  J.— This  is  an  action  of  trover,  to  recover  the 
value  of 'sixty.five  cords  of  wood,  brought  by  the  plaintiff,  as 
the  assignee  of  Arthur  Sowerby,  an  insolvent  debtor.  It  is 
submitted  to  the  court  upon  an  agreed  statement  of  facts,  which 
being  clearly  stated,  it  is  not  necessary  to  recapitulate. 

On  these  facts,  the  plaintiff  contends  that  there  was  a  com- 
plete  sale  and  purchase  of  the  wood,  by  which  the  property  be- 
came vested  in  Sowerby  and  Grant;  that  by  the  dissolution  of 
partnership  between  them  in  June,  1848,  and  the  transfer  by 
Grant  to  Sowerby  of  all  his  right,  title,  and  interest  in  the  part- 
nership property,  Sowerby  stipulating  to  pay  all  the  partnership 


LOrKRTY. 


ARNOLD    V.   DELANO. 


699 


e  place  until 

tid  Grant  ad- 
3ublic  notice 
;ounts  of  the 

Sowerby  un- 
t  conveyed  to 
lip  property, 
^t  the  time  of 

the  partner- 

ly  in  October, 
continued  on 
signment  was 

I  for  the  wood , 
r  he  paid  for 
;  up  the  wood 
irst  of  April, 
Lired  off;  but 
than  sixty-five 
o  give  up  that 

rt  of  common 
the  defendant 

on  the  points 


to  recover  the 
he  plaintiff,  as 

debtor.  It  is 
3f  facts,  which 
:ulate. 

•e   was   a  com- 
le  property  be- 

dissolution  of 
le  transfer  by 
•est  in  the  part- 
the  partnership 


(Ul>ts,  this  property  became  vested  in  Sowerby;  and  that  l)3'his 
subsequent  insolvency,  the  proceedings  under  it,  and  the  as- 
signment to  the  plaintiff,  the  same  title  to  the  property  be- 
came vested  in  him. 

On  the  other  hand,  the  defendant  insists,  that  though  the 
wood  was  sold  and  measured  off,  with  a  license  to  the  purchas- 
ers to  come  onto  his  land  and  take  it  away  as  they  wanted  it, 
at  any  time  within  one  year;  and  though  a  credit  of  six  months 
was  given  for  the  purchase  money,  and  a  note  was  given  to  the 
plaintiff,  payable  at  the  Nordiampton  Bank  in  six  months ;  yet 
as  the  wood  remained  as  it  originally  lay  on  his  premises,  it 
was  in  his  actual  possession;  and,  ..s  the  purchasers  became 
insolvent,  and  legal  proceedings  in  insolvency  were  instituted 
against  them,  before  the  price  of  the  wood  had  been  paid,  he 
had  a  right  to  detain  the  wood  until  payment  or  its  equivalent. 
The  cause  has  been  extremely  well  argued  on  both  sides, 
aiul  many  authorities  have  been  cited.  But  without  going  over 
the  whole  ground,  it  is  proposed  to  state  only  what  we  under- 
stand to  be  the  rules  of  law  bearing  upon  the  subject,  and  to 
apply  them  to  the  facts  of  the  case  as  they  appear  in  the  agreed 
statement. 

There  is  manifestly  a  marked  distinction  between  those  acts, 
which,  as  between  the  vendor  and  vendee  upon  a  contract  of 
sale,  go  to  make  a  constructive  delivery  and  to  vest  the  prop- 
erty in  the  vendee,  and  that  actual  delivery  by  the  vendor  to 
tlie  vendee,  which  puts  an  end  to  the  right  of  the  vendor  to  hold 
the  goods  as  security  for  the  price. 

When  goods  are  sold,  and  there  is  no  stipulation  for  credit 
or  time  allowed  for  payment,  the  vendor  has,  by  the  common 
law,  a  lien  for  the  price ;  in  other  words,  he  is  not  bound  actu- 
ally to  part  with  the  possession  of  the  goods,  without  being  paid 
for  them.  The  term  "lien"  imports  that,  by  the  contract  of 
sale,  and  a  formal,  symbolical,  or  constructive  delivery,  the 
property  has  vested  in  the  vendee ;  because  no  man  can  have  a 
lien  on  his  own  goods.  The  very  definition  of  the  lien  is,  a 
right  to  hold  goods,  the  property  of  another,  in  security  for 
some  debt,  duty,  or  other  obligation.  If  the  holder  is  the 
owner,  the  right  to  retain  is  a  right  incident  to  the  right  of 
property ;  if  he  have  had  a  lien,  it  is  merged  in  the  general 
property. 


700      modi; S  OK  OBTAINING  TITLE  TO   PERSONAL  PUOPERTY. 

A  lien  for  the  price  is  incitlent  to  the  contract  of  sale,  when 
there  is  no  stipulation  therein  to  the  contrary;  because  a  man  is 
not  required  to  part  with  his  rroods,  until  he  is  paid  for  then., 
But  convcntio  legem  vincit;  and  when  a  credit  is  civen  by 
agreement,  the  vendee  has  a  right  to  the  custody  and  actual 
possession,  on  a  promise  to  pay  at  a  future  time.  He  may  then 
take  the  goods  away,  and  into  his  own  actual  possession;  and 
if  he  does  so,  the  lien  of  the  vendor  is  gone,  it  being  a  right 
incident  to  the  possession. 

iJut  the  law,  in  holding  that  a  vendor,  who  has  thus  given 
credit  for  goods,  waives  his  lien  for  the  price,  does  so  on  one 
implied  condition,  which  is,  that  the  vendee  shall  keep  his 
credit  good.  If,  therefore,  before  payment,  the  vendee  become 
bankrupt  or  insolvent,  and  the  vendor  still  retains  the  custody 
of  the  goods,  or  any  part  of  them  ;  or  if  the  goods  are  in  tiie 
hands  of  a  carrier,  or  middle-man,  on  their  way  to  the  vendee, 
and  have  not  yet  got  into  his  actual  possession,  and  the  vendor, 
before  they  do  so,  can  regain  his  actual  possession,  by  a  stop- 
page in  transitu;  then  his  lien  is  restored,  and  he  may  hole! 
the  goods  as  security  for  the  price. 

The  principle  we  take  to  be  well  settled,  but  the  difficulty 
which  arises  in  practice— one    which  has  given  rise  to  so  many 

cases lies    in  determining  what  is  such  an  actual  chan^ 

possession  from  the  vendor  to  the  vendee,  as  shall  be  dc,m  u 
to  put  an  end  to  the  vendor's  lien.  Some  cases  seem  to  be 
clear,  and  to  illustrate  the  rule.  If  the  goods  are  delivered  to 
the  vendee's  own  servant,  agent,  wagoner,  or  shipmaster,  that 
is  in  law  a  delivery  to  the  vendee  himself.  So  if  goods  art- 
stored  in  a  common  warehouse,  as  the  dock  warehouses  at  the 
London  docks,  and  entered  in  the  books  as  the  property  of  A. 
B.,  and  deliverable  to  him,  and  a  dock  warrant  issued,  and  after- 
ward, upon  the  proper  order  of  A.  B.  on  the  warrant,  the 
whole  or  a  part  are  transferred  to  C.  D.,  and  entered  in  like 
manner  in  his  name,  this  is  an  actual  change  of  custody,  con- 
trol, and  possession,  though  the  goods  are  not  moved  from  their 
position.  So,  if  the  seller  sustain  different  characters,  as  if  a 
person,  who  is  a  livery  stable  keeper,  having  a  horse  to  sell, 
makes  r.  sale  to  C.  D.,  and  then  transfers  the  horse  to  hii.  liv- 
ery stable,  to  be  kept  for  C.  D.  at  a  stipulated  weekly  hire,  this 
may  be  regarded  as  an  actual  change  of  custody  and  posseiision. 


I'UOPERTY. 


AKNOI.I)    V.   PICI.ANO. 


701 


;  of  sale,  when 
ecause  a  man  is 
paid  for  them, 
:lit  is  then  liy 
ody  inid  actual 
He  may  then 
possession  ;  and 
t  being  a  right 

has  thus  given 
does  so  on  one 

shall  keep  his 
;  vendee  become 
lins  the  custody 
oods  are  in  the 
y  to  the  vendee, 
and  the  vendor, 
sion,  by  a  stoj)- 
id   he   may  hold 

ut  the  difficulty 
rise  to  so  many 
ictual  chan,'' 
shall  be  dcm "a 
ases  seem  to  be 
are  delivered  to 
shipmaster,  that 
So  if  goods  arc 
arehouses  at  the 
:  property  of  A. 
issued,  and  after- 
the  warrant,  the 
i  entered  in  like 
of  custody,  con- 
tnoved  from  their 
aracters,  as  if  a 
a  horse  to  sell, 
horse  to  hii.  liv- 
weekly  hire,  this 
y  and  posscisiou. 


But  by  far  the  most  common  case  which  occurs,  is  where 
goods  are  ordered  by  letter,  on  credit,  to  be  sent  from  one 
country  to  another,  or  from  one  part  of  the  same  country  to 
niiother,  and  are  accordingly  forwarded  by  a  common  carrier. 
There,  as  the  carrier  is  not  the  servant  of  the  vendee,  the  goods, 
though  they  have  left  the  actual  possession  of  the  vendor,  if 
they  have  not  reached  the  actual  custody  of  the  vendee,  or  the 
ultimate  place  of  destination  ordered  by  him,  may  be  stopped 
/w //-.rw-s-//// by  the  vendor ;  and  if  he  can  thus  stop  them,  he 
ie;^aiiis  his  lien. 

Now  to  apply  these  rules  to  the  present  case:  It  appears  to 
us  very  clear,  that   there  was  a  good  sale  and  delivery  of  the 
wood  to  Grant  and   Sowerby.     The   wood   was   measured  and 
marked    off,   so    that  the  very  sticks  composing    the  sixty-five 
cords  would   be    identified.     And    the    reason,    why  marking, 
measuring,  weighing,  etc.,  is  necessary,   is,  that  the  particular 
floods  may  be  identified.      If  ten  barrels  of  oil  are  sold,  lying 
ill  a  tank  of  thirty  barrels,  the  buyer  can  identify  no  part  of  it 
;is  his,  until  it  is  measured.     So,  if  fifty  bales  of  cotton  are  sold 
out  of  one  hundred,  no  particular  bales  are  identified  until  sep- 
:n;ition.      Hut,  if  they  are  capable  of  being  identified,  and  by 
the  contract  of  sale  are   identified,    that   is   sufficient,  and  the 
property  passes;  as,  if  in  the  last  case,  there  are  one  hundred 
Iniles  of  cotton,  numbered  from  one  to   one   hundred,    and  the 
contract  is  for  the  fifty   odd   numbers,   or  the  fifty  even    num- 
Ihis.  or  any  other   specified  fifty  numbers,    the  bales  sold   are 
identified  though  not  separated.      In   tht  present  case  the  wood 
was    marked  off  and  identified,  and  the  vendees  had    a  license 
for  one  year  to  come  onto  the  vendor's  land  and  to  take  it  away. 
This  was  a  complete  sale  and  a  constructive  delivery,  so  as   to 
vest  the  property  in  Grant  and  Sowerby;  and,  on  their  dissolu- 
tion   and    transfer,   it  vested    in    Sowerby,  and    by  the    assign- 
ment in  his  assignee.     Then,  the  question'  is,   whether  the   de- 
fendant had,  under  the  circumstances,  a  lien  for  the  price,  and 
ue  think  he  had. 

rhe  purchasers  had  a  license  to  go  onto  the  defendant's 
iaiul,  and  take  the  wood;  whether  this  license  was  revocable  or 
not.  it  is  not  necessary  to  consider,  as  it  was  not  in  fact  re- 
voked. But  the  vendees  did  not  enter  and  take  the  wood;  it 
remained  on  the  vendor's  land,   and  in  his   possession,   in  the 


703       MODKS  OK  OBTAINING  TITMi  TO  PEUSONAI-   I'KOI'KK  IV. 

same  manner  as  before  and  at  the  time  of  the  sale.  The  ven- 
dor acted  in  no  new  capacity;  he  was  to  receive  nothinjj  for 
kecpinf^j;  he  was  precisely  in  the  condition  of  a  vendor,  who  had 
not  parted  with  the  possession  and  custody  of  the  goods  sold. 
And  this  was  the  state  of  things,  when  Sowerby  went  into  in- 
solvency; upon  which  event,  we  think,  the  vendor  was  rcmittcil 
to  his  right  to  keep  possession  of  the  wood  as  security  for  the 
price.  Such  a  vendor  in  possession  is  regarded  as  having  :i 
higher  equity  to  retain  for  the  price,  than  the  assignee  of  u 
debtor,  who  has  not  paid  for  the  property,  has  to  claim  it  for 
the  general  creditors. 

Sometimes  a  question  may  arise  as  to  what  constitutes  an  in- 
solvency, and  whether  a  mere  stoppage  of  payment,  and  fail- 
ure, in  the  popular  sense,  is  sufficient.  In  this  case,  there  is  no 
doubt,  because  there  was  an  insolvency  declared  by  law,  and  a 
sequestration  of  all  the  vendee's  property,  under  which  this 
wood  is  claimed  by  the  plaintiff. 

If  it  might  be  supposed,  that  the  giving  of  a  note  in  this  case 
was  a  payment,  which  would  vary  the  case  from  that  of  n  sim- 
ple promise  to  pay  for  the  wood,  we  think  the  answer  is,  that 
a  promissory  note,  even  if  in  form  negotiable,  whilst  it  remains 
in  the  hands  of  the  vendor  and  not  negotiated,  but  ready  to  be 
delivered  up  on  the  discharge  of  the  lien,  is  regarded  as  the 
evidence  in  writing  of  a  promise  to  pay  for  the  goods  pur- 
chased, and  does  not  vary  the  rights  of  the  parties.  Thurston 
V.  Blanchard,  22  Pick.  18. 

The  fact,  that  after  the  proceedings  in  insolvency  com- 
menced, and  became  known  to  the  defendant,  he  applied  to 
Sowerby  and  got  up  the  bill  of  sale,  can  not  of  itself,  we  think, 
avail  the  defendant.  The  insolvent  could  not,  in  that  state, 
vacate  the  sale,  or  reconvey  the  property;  and  if  the  wood  was 
worth  more  than  the  lien  of  the  defendant  upon  it,  we  think 
that  the  assignee,  on  paying  the  defendant  the  price,  was  en- 
titled to  the  wood  for  the  benefit  of  the  general  creditors ;  and 
this  was  a  right  which  the  insolvent  could  not  defeat. 

A  fact  was  stated,  on  the  part  of  the  plaintiff,  as  of  some 
weight,  namely,  that  after  the  expiration  of  one  year  from  the 
sale,  the  defendant  sold  a  part  of  the  wood.  Whether,  at  that 
time,  he  had  an  absolute  right  to  sell  the  wood  or  not,  it  seems 
to  us   that  such  sale  can  have  no  effect  on  this  claim.     The 


\^ 


KOI'EIirV, 


BABCOCK    V.   nOSNF.IX. 


7"3 


Ic.  The  ven- 
c  nothing  for 
iidor,  who  had 
e  gooil.s  sold. 
went  into  iii- 
r  was  rcmittcil 
curity  for  tht- 
I  as  having  ;i 
assignee   of  a 

0  claim  it  for 

istitutes  an  in- 
icnt,  and  fail- 
ise,  there  is  no 
by  law,  and  a 
ler  which  this 

)te  in  this  case 
that  of  a  sim- 
nswer  is,  that 
lilst  it  remains 
it  ready  to  be 
garded  as  the 
iie  goods  pur- 
es.     Thurston 

solvency  coni- 

he  applied  to 

tsclf,  we  think, 

in  that   state, 

the  wood  was 

1  it,  we  think 
price,  was  en- 
creditors  ;  and 
feat. 

ff,  as  of  some 
year  from  the 
hether,  at  that 
ir  not,  it  seems 
s  claim.     The 


plaintiff,  if  he  can  recover  at  all,  must  recover  on  the  strength 
of  his  own  title.  He  must  prove  a  conversion.  The  action  of 
trover  admits  that  the  defendant  obtained  the  possession  right- 
fully; then,  if  he  had  a  lien  and  a  right  to  hold  until  the  price 
was  paid,  his  refusal  to  deliver  the  wood  on  demand  to  the 
plaintiff  (such  demand  not  being  accompanied  with  a  tender  of 
the  price),  was  no  evidence  of  conversion;  and,  until  such  ten- 
der made,  the  plaintiff  has  no  ground  of  complaint. 

Judgment  for  the  defendant. 

Consult— Leonard  v.  Davis,  i  Black,  476;  Wade  v.  MolTitt,  21  III. 
no;  Southwestern  Freight  Co.  v.  Stanard,  44  Mo.  71,  100  Am.  Dec. 
255;  Diem  V.  Koblitz,  49  Ohio  St.  41;  Florence  Mfg.  Co.  v,  Urowii, 
IJ4  U.  S.  3S.S;  Lupin  V.  Marie,  6  Wend.  77;  Comer  v.  Cunningham,  77 
N.  Y.  371;  Gregory  v.  Morris,  96  U.  S.  619;  Ware  River  R.  Co.  v.  Hub- 
bard, 114  Mass.  447;  Parks  v.  Hall,  2  Pick.  213;  New  Haven,  etc.,  R. 
Co.  V.  Campbell,  12S  Mass.  104,  35  Am.  Rep.  360;  Conrad  v.  Fisher,  37 
Mo.  CApp.)  352;  Robinson  v.  Morgan,  65  Vt.  37. 


§  118.    Same— Stoppage  in  transitu— in  general. 
BABCOCK  V.  BONNELL. 

[80  N.  Y.  244.] 

Couri  of  Appeals  of  Neiv   York,  1880. 

Action  by  the  administratrix  of  Babcock  agiinst  Bonnell  for 
an  accounting  for  the  proceeds  of  a  policy  of  insurance  taken  out 
on  the  life  of  Babcock,  and  delivered  to  defendant  as  collater-il 
security  for  two  promissory  notes  of  Babcock  &  Company  for 
$4,678,48.  Bonnell  afterward  received  from  one  Wheelright 
$925  in  full  satisfaction  of  the  notes  which  were  delivered  to 
Babcock  &  Company  and  destroyed. 

Church,  C.  J.— The  finding  of  the  trial  judge  that  the  pol- 
icy was  taken  out  and  delivered  to  the  defendant  as  collateral 
security  for  the  payment  of  the  indebtedness  of  Babcock  & 
Company  to  him  was  warranted  by  the  evidence.  No  other 
conclusion  could  be  arrived  at,  and  the  evidence  is  substantially 
undisputed. 


704     Monns  oi-  oiti.MNiN«.  nn.K  to  personal  ruofiniTV. 

Some  vcnrs  afterward  Mr.  Habcock  expressc.l  a  desire  not 
to  be  rcanle.l  as  bavin-  an  interest,  and  staled  tliat  tbe  entire 
interest  was  in  tbe  defendant;   but  I  do   not    thini<   tbat   tb.s 
cspression,  under  the  eircumstances,  would  have  tlie  effect  of 
a  release,  or  create  an  estoppel.     There  is  no  dispute  that  at 
the  time  the  policy  was  taken  out,  there  was  an  indebtedness  in 
favor  of  the  defendant  a^^ainst  Habcock  ."^  Company,  evidenced 
by  two  notes,  amounting  to  $4,678.48.    Tbe  policy  was  issued 
in  February,  1S70,  and  it  is  claimed  and  found  that  ni  April, 
,S7<,,  these  notes  were  compromised  and  settled,  and  that  the 
defendant  received  from  one  Wheeb  i-ht,  on  behalf  of  Babcock 
&  Company,  $9-S  in  money,  in  full  satisfaction  and  discharge 
of  said  indebtedness,  and  delivered  and  surrendered  said  notes 
to  him,  and  that  thev  were  afterward  delivered  up   to  Babcock 
&  Company,  who  destroyed   and  canceled  them.       Wheelright 
testii'ied    tiiat   he  purchased   the   notes  of  the  defendant     and 
paid  his  own  money,  and  delivered  them  to   Babcock  ik  Com- 
nanv  upon  being  repaid  that  amount  and    his    expenses.     In 
either  view  we  think  the  debt  was  discharged.     It  was  an  exe- 
cuted   accord.     Nothing  remained  executory,  and  it  operated 
ns  a  full  satisfaction.     A  mere  promise  to  accept  less  than  the 
full  amount  of   a  debt,  although  the  sum  promised   has  been 
paid    has  been  held  not  suilkient;  but  when  the  security  has 
been  surrendered,  or  some  act  done  of  a  like  nature,  there  is  no 
reason,  in  law  or  morals,  why  the  party  should  not  be  bound. 
Kromcr  y.  Ileim,  75  N-  Y.  574,  3>  Am.  Rep.  49|- 

It  may  be  that  tbe  defendant  intended  to  hold   the  policy  of 
insurance  to  indemnify  him  for  the  deficiency,  but  there  was  no 
..neement  to   that  effect,  and  the  defendant's  letters  indicate 
duit  he  had  regarded  the  debt   fully   released    and    canceled. 
The  defendant  claims  also  to  hold  the  policy  as  security  for  the 
balance  of  an  additional  indebtedness  of  $1,326.44  and  inter- 
est,  after  applying  the  proceeds  of  a  cargo  of  ^^'^^l'  ^^^  f"^^";f 
i„  iespect  to  which  is  here  Miserted:  ^^FouHA.  On  the  fifteenth 
day  of  November,  1S69,  the  defendant  sold  a  cargo  of  coal  to 
said  Charles  A.  Babcock  &  Company,  and  took  a  note  in  pay- 
ment therefor  of  $1,226.44,  due  March  15,  1870;  the  said  last 
mentioned    cargo   of    coal   was   shipped    to   said    Charles   A 
Babcock  &  Company  by  the  schooner  Hefzibafi,  on  or  about 
the  twenty-firstday  of  February,  1S70,  the  defendant  through 


IT.KTY. 


nAncocK  V.  bonnell. 


desire  not 
it  the  entire 
k  that  this 
ic  effect  of 
piitc  that  at 
ibtedness  in 
,  evidenced 
r  was  issued 
It  in  April, 
and  that  the 
of  Bahcock 
id  discharge 
d  said  notes 
to  IJabcock 

Wheclright 

cndant,   and 

ock  k  Com- 

cpenscs.     In 

was  an  exe- 

5t  operated 
less  than  the 
;d   has   been 

security  has 
e,  there  is  no 
3t  be  bound. 
[. 

;he  policy  of 
there  was  no 
Iters  indicate 
nd    canceled, 
curity  for  the 
\\  and  inter- 
1,  the  finding 
1  the  fifteenth 
rgo  of  coal  to 
\  note  in  pay- 
;  the  said  last 
1    Charles   A. 
't,  on  or  about 
idant  through 


liis  agent,  Edward  (juihijjer.  stopped  the  saiil  hist  mentioned 
largo  of  coal  in  transitu,  took  possession  tiiercof,  and  dis- 
.illirmed  the  contract  of  sale  therefor,  and  on  the  fourtli  day  of 
May,  1 870,  sold  the  said  last  mentioned  cargo  of  coal  to  (jiie 
I-^.  S.  Farrar. "  If  this  finding  can  be  sustained  as  a  finding  of 
fact,  it  disposes  of  any  claim  for  the  debt.  If  the  disalfirmance 
of  the  contract  of  sale  of  the  coal  depends  as  matter  of  law  upon 
ilie  stoppage  of  the  coal  in  transitu,  then  a  more  difiKiilt  and 
doubtful  question  is  presented.  Every  intendment  is  in  tavor 
of  the  findings  of  facts,  and  findings  may  be  implied,  if  war- 
ranted by  the  evidence,  to  sustain  a  judgment.  Tiie  evidence 
as  to  the  stoppage  of  the  coal,  as  to  the  possession  of  the 
(iifendant,  and  the  sale  tliereof  by  liim  does  not  present  the 
facts  as  clearly  as  would  be  desirable  upon  this  question.  If 
the  defendant  took  possession  of  the  coal  in  the  exercise  of  the 
right  of  stopjiagc  in  transitu,  and  sold  the  same  without  notice 
to  Habcock  tS:  Company,  and  without  their  consent,  and  espe- 
cially before  the  debt  was  due,  an  inference  of  an  intention  to 
disatfirm  the  contract  of  sale  might  be  drawn,  because  upon 
liie  theory  that  this  right  is  to  enforce  a  lien,  as  claimed  by  the 
defendant,  he  must  hold  the  property  until  the  exniration  of 
the  credit,  and  be  able  to  deliver  it  upon  payment  of  Mie  price, 
and  the  vendee  has  the  right  to  pay  the  price  and  take  the 
iMop^ty.  According  to  that  theory  the  credit  is  not  abrogated, 
nor  the  sale,  but  the  vendor  is  permitted  to  retake  the  posses- 
sion of  the  property,  and  hold  it  as  security  until  the  price  is 
paid.  If  not  paid  at  the  time  stipulated,  the  vendor,  in  analogy 
to  other  cases  of  lien,  may  sell  the  property  upon  giving  notice. 

The  general  rule  upon  the  theory  of  a  lien  must  be  that  the 
vendor,  having  exercised  the  right  of  stoppage  in  transitu,  is 
restored  to  his  position  before  he  parted  with  the  possession  of 
tiie  property.  The  property  is  vested  in  the  vendee,  and  the 
vendor  holds  possession  as  security  for  the  payment  of  the 
purchase  price.  If,  therefore,  the  defendant  sold  the  coal  with- 
out notice  or  consent,  or  if  with  consent  of  the  vendees  with  the 
understanding  that  the  sale  was  to  be  deemed  rescinded,  the  find- 
ing would  be  justified,  and  the  defendant  would  have  no  claim 
upon  this  note. 

The  coal  was   sold   to   one  Farrar,  and  a  bill  of  sale  thereof 
made  by  the  defendant,  and  he  received  the  purchase  money. 
45 


mm 


7o6 


MODICS  OI.    ..IMAIMNO  ITil-K  TO  I'Kl.sONAI,  I'UOI-KUIV 


The  n.al  was  S..U1  and  the  hill  of  sale  an.l  payment  were  not 
made  until  Al).ll,  alter  the  note  became  dne.  and  there  is  .onie 
contlict  ir.  the  evidence  whether  it  was  made  with  the  knowl- 
cdL'e  or  consent  of  Bahcock  k  Company,  or  not. 

As  to  the  legal  (luestion,  althoufrh  the  ri-ht  of  stoppa-e  m 
transitu  has  heen  rec-ni/.ed  in  iOn-hmd  for  nearly  two  hundred 
years,  there  is  jrreat  confusion  in  the  hooks  as  to  the  or.-n,  of 
the  ri-ht,  and  the  principles  upon  which  it  is  founded.  As  late 
as  184.  Lord  Ahin^-er  said,  that,  -althou^'h  the  question  ot 
stoppage  in  transitu  had  heen  as  frequently  rai-^e.l  as  any  other 
mercantile  ciuestion  within  the  last  hundred  years,  it  must  be 
owned  that  the  principle  on  which  it  depends  has  never  been 
either  settled  or  stated  in  a  satisfactory  manner. 

»'In  courts  of  equity  it  has  been  a  received  opinion  that  .t 
was  founded  on  some  principle  of  common  law.  In  courts  c.f 
law  it  is  just  as  much  the  practice  to  call  it  a  principle  of  equity 
which  the  common  law  has  adopted." 

Mr    Parsons,  in  his  work  on  Admiralty,  says  there  are  three 
ways,  in  either  of  which  it  miffht  be  supposed  that  the   law  ot 
stoppn-e  entered   into  the  law   of  England.     One,   that  .t   .s 
l,ased  upon  the  civil  law  by  which,  in  case  of  a  sale,  the  prop- 
erty does  not  pass  to  the  buyer  until  he  has   possession  of  the 
goods       It  would  follow  that  the  seller  would    continue    the 
owner  until  they  reach  the  buyer,  and  that  by  the  insolvency  of 
the  latter  the  goods  would  remain  the  property  of  the  former. 
IJv  the  common  law  a  sale  does  of  itself  pass  the  property  to  the 
buyer  without  delivery.     Another  way  is  by  implying  a  right  ot 
re<^cinding  the  contract  of   sale   in   case  of  insolvency,  and  that 
the  act  of  stoppage  was  an  exercise  of  that  right,  and  a  third 
way  is  by  implying  constructive  possession  in  the  seller  for  the 
purpose  of  a  lien,  to  be  enforced  by  the  act  of  stoppage,  or,  m 
other  words,  that  this  right  is  an  enlargement  of  the  common 
law  right  of  lien.     Pars.  Adm.  479. 

The  rule  seems  not  to  have  been  settled  in  1S43.  Parke,  U., 
said-  "What  the  effect  of  stoppage  m  transitu  is,  whether 
entirely  to  rescind  the  contract,  or  only  to  replace  the  vendor 
in  the  'same  position  as  if  he  had  not  parted  with  the  possession, 
and  entitle  him  to  hold  the  goods  until  the  price  be  paid  down, 
is  a  point  not  yet  fully  decided,  and  there  are  difficulties  attend- 
ing each  construction." 


lOl'EUTV. 

Lint  were  not 
there  is  some 
th  the  kiiowl- 

■  stopiKi^'e  in 
>■  two  hiiiuhtd 
I  the  origin  of 
ulcd.  As  hite 
c  ciufstion  of 
il  as  any  other 
rs,  it  must  be 
xs   never  been 

Dpinion  that  it 

In    ce)urts  of 

ciple  of  equity 

there  are  three 
Kit   the   hiw  of 
)ne,    tluit  it   is 
sale,  the  prop- 
session   of  the 
continue    the 
e  insolvency  of 
of  the  former, 
property  to  the 
lying  a  right  of 
vency,  and  that 
;ht,  and  a  third 
10  seller  for  the 
itoppagc,  or,  In 
of  the  common 

42.  Parke,  B., 
iitu  is,  whether 
)lace  the  vendor 
1  the  possession. 
;  be  paid  down, 
fficulties  attend- 


IIAHCOCK   V,  nONNEr.L. 


P7 


Mr.  Mcll,  in  his  Commentaries  on  the  Law  of  Scotland, 
favors  the  doctrine  of  rescission.  He  says:  "Although  there 
arc  many  dilliculties  cither  way,  it  appears,  on  the  whole,  most 
consistent  with  tlic  great  lines  of  this  doctrine  of  stoppage  in 
transitu,  that  the  seller's  security  over  the  goods  sold,  though 
perhaps  in  a  large  sense  of  the  nature  of  a  lien,  is  given  by 
equity  originally  on  the  condition  that  the  seller  shall  take  back 
tiie  goods,  as  if  the  contract  were  ah  initio  recalled." 

There  are  some  other  authorities  favoiing  the  same  view, 
and  there  are  others  that  favor  the  theory  of  a  lien.  Fcise  v. 
VVray,  3  East,  93;  Ex  parte  Gwynne,  13  \'ts.  Jr.  379;  Lick- 
barrow  V.  Mason,  6  East,  21,  note. 

Mr.  I'arsons  says  that  the  earlier  English  rases  sustain  the 
doctrine  of  a  lien,  and  intimates  that  later  authorities  changed 
the  ground  to  that  of  rescission,  but  that  the  latest  returned  to 
the  original  doctrine.  Pars.  Adm.  4S1,  Whatever  uncer- 
tainty there  may  be  as  to  the  rule  in  England,  the  decisions  in 
this  country  arc  quite  preponderating  in  favor  of  the  theory  of 
a  lien.  Rowley  v.  IJigelow,  \i  IMck.  307,  23  Am,  Dec.  607; 
Staunton  v.  Eager,  16  Pick.  467-475;  Arnold  v.  Delano,  4 
Cush.  33,  39,  50  Am.  Dec.  754;  Newhall  v.  Vargas,  13  Me. 
93,  29  Am.  Dec.  4S9;  S.  C,  15  Me.  314,  33  Am.  Dec.  617, 
and  cases  cited;  Rogers  v.  Thomas,  20  Conn.  53;  Jordan  v. 
James,  5  Ohio,  SS-98;  Harris  v.  Pratt,  17  N.  Y.  263.  The 
elementary  writers  favor  the  same  view,  3  Kent,  Com.  541; 
Pars.  Adm.  4S3;  Pars.  Cont.  59S.  The  question  has  never 
been,  that  I  am  aware,  definitely  decided  in  this  state.  As  an 
original  question  the  doctrine  of  rescission  commends  itself  to 
my  judgment  as  being  more  simple,  and,  in  most  cases,  more 
just  to  both  parties  than  the  notion  that  the  act  of  stoppage  is 
tlie  exercise  of  a  right  of  lien ;  but  in  deference  to  the  prevail- 
ing current  of  authority,  I  should  hesitate  in  attempting  to 
oppose  it  by  any  opinion  of  my  own,  and  for  that  reason  I  do 
not  deem  it  necessary  to  state  the  grounds  which  influence  my 
ill      luent. 

,  is  found  as  a  fact  that  the  policy  was  delivered  to  the 
iffendant  as  llateral  security  for  the  payment  of  the  first  two 
notes  referred  to  only,  "and  that  the  defendants  never  acquired 
or  1  ad  any  interest  in  said  policy  or  in  the  moneys  to  accrue  or 
bee  >ine  payable  thereon,  except  as  a  creditor  of  the  said  firm, 


7„S       MODES  OF  OnTA.NING  TITLK  TO  PERSONAL  PROPERTY. 

and   to  the   extent  of  his  claim  upon   the  nforesnul  t.-o  notes 

against  the    said    firm."     The  evidence  jusi.fied  th.s  find-nj,. 

^M.e  letter  of  the  defendant  of  March    i,  .S76    shows  that  he 

did  not  then  snppose  that  he  had  any  lej^al  indebtedness  aga.nst 

Babcock  &  Company.     At  the  time  the  pol,cy  was  ,ssued  the 

c.rcro  of  coal  for  which  the  last  note  was  given  was  m  posses- 

sio,:of  the  defendant  as  he  claimed,  and  had  not  been  d.sposed 

of     so   that  the  balance,  even  if  Babcock  &  Company  vvere 

liable  for  it,  could  not  then  be  known,  and  in  March  aft^cr    in  a 

t^     t.  the  defendant,  h.troducing  Mr.  Wheelright,  Babcock 

&  Company  sav :  "We  will  avail  ourselves  of  the  opportun.ty 

o  have  him  ariange  for  the  settlement  of  your  dann  agamst 

1,  leaving  in  abeyance  the  cargo  of  Hep.i^ak,  and  the  note 

eivcn  in  settlement  of  the  same."  ^      «    f  ,u  .f  fhe> 

The  testimony  of  the  insurance  agent  is  to  the  effect  tha  the 
policv  was  delivered  to  secure  a  fixed  indebtedness,  vvh.ch 
could  only  refer  to  the  first  two  notes.  We  are  of  opn.:on, 
therefore,  that  the  defendant  has  no  lien  upon  th.s  money  to 
secure  th.  balance  of  the  note  given  for  that  cargo  of  coal, 
even  if  Babcock  &  Company  arc  liable  for  it. 

It  follows  that  the  judgment  must  be  affirmed. 

All  concur,  except  Earl,  J.,  dissenting. 

Co.svLT-Rowlev  v.  Higelow,  12  Pick.  313;  Atkins  v.  C°lbjs  20  N. 

13  Me!  93,  29  Am.  Dec.  489;    M'^Klroy  v.   Seery.  61   Md.  389,  48  Am. 
Rep.  no. 

§119.    Same— Insolvency  of  buyer. 

BENEDICT  V.  SCHAETTLE. 

[12  Ohio  St.  515.] 
Supreme  Court  of  Ohio,  .061. 

G„oi  ,ov.  J.-According  to  the  decision  in  House  v.  Elliott, 
6  Ohio  St.  Rep.  497,  which  applies  in  this  case,  we  can  not 
inquire  as  to  the  weight  of  evidence  on  which  any  finding  of 
fact  was  made  in  the  court  below.  The  finding  must  be  against 
law      Assuming  every   fact  which   the  evidence   may  tend  to 


r 
I 


.,.-,^=aw. 


I,  PROPERTY. 

oicsaid  two  notes 
Tied  this  finding. 
r6,  shows  that  he 
Icbtedness  ngainst 
icy  was  issued  the 
en  was  in  posses- 
not  been  disposed 
t  Company  were 
March  after,  in  a 
leehight,  Babcock 
if  the  opportunity 
■our  chiim  against 
ibah,  and  the  note 

)  the  effect  that  the 
lebtedness,  which 
I'e  are  of  opinion, 
pon  -his  money  to 
hat  carfjo  of  coal, 
t. 
tned. 


.tkins  V.  Colby,  20  N. 
3;  Newha'.l  v.  Vargas, 
,  6i   Md.  389-  48  Am. 


BENEDICT    V.   SCIIAETTI.E. 


709 


ILE. 


?(5/. 


1  in  House  v.  Elliott, 
is  case,  we  can  not 
hich  any  finding  of 
iding  must  be  against 
vidence   may  tend  to 


prove,  in  support  of  the  finding  and  judgment  of  the  court 
below,  do  those  facts  fail  to  establish  the  right  of  the  plaintiff 
in  the  action  to  recover?  We  need  not,  therefore,  say  wliether 
there  was  sutlicient  evidence  to  show  that  Johnson,  to  whom 
the  goods  were  sold,  was  insolvent.  There  was,  we  think, 
evidence  tending  to  show  the  insolvency  of  the  vendee  at  the 
time  of  the  sale  of  the  goods,  and  that  such  insolvency  was  not 
known  to  the  vendor.  The  question  then  arises  whether  the 
vendor,  on  afterward  hearing  of  the  insolvency,  may  exercise 
the  right  of  stoppage  in  traiisit/i,  or,  whether,  as  claimed  by 
counsel  for  the  plaintiff  in  error,  the  insolvency,  to  authorize  a 
stoppage  in  trr^nsita  must  be  evidenced  by  some  positive  overt 
act,  the  existence  of  which  is  not  inferable  from  any  testimony 
in  the  bill  of  exceptions,  and  that  such  overt  act  must  occur 
after  the  sale,  and  before  the  delivery  of  che  goods? 

It  is  the  rule  of  the  mercantile  law,    that   where   goods   have 
been  consigned,  and  are  on  transit  to  the  vendee,  the  consignor 
can  not  vary  the  consignment,  except  in  the  case  of  insolvency. 
It  has  been  said  that  "the  mischief  and  inconvenience  that  would 
ensue  on  a  contrary  supposition  are  extreme       The  goods  might 
DC  put  on  board,  and  might  lie  at  the  risk  of  the  consignee  for 
two  or  three  months ;     and    if   the   consignor   could    come    and 
resume  them  at  pleasure,    it  would   place   die    consignee   in  a 
situation  of  great  disadvantage,  that  he  should  be   exposed  to 
the  risk  during  such  a  length  of  time,  for  an  object  which  miglit 
be  eventually  defeated,  at  any   moment,   by   the   capricious  or 
interested  change  of  intention   in   the   breast   of   the  consignor. 
It  would  be  to  expose  the  -onsignee   altogether  to  the  mercy  of 
the  seller."     The   Constantia,   6   C.    Rob.    321-327.     In  that 
case  the  vendor  had  stopped  and  diverted  the  delivery  of  goods, 
and  it  was  said,  if  the  vendee  "had  been  an  insolvent  person, 
it  would  have  amounted  to  a  complete  and  effective  revendica- 
tion  of  the  goods.     But  if  the  person  .to  whom   thrv  are  con- 
signed is  not  insolvent;    if  from   misinform.ition  or  <  xcess  of 
caution,  the  venuor  has  exercised   this  privilege  pre  naturely, 
he  has  assumed    a   right   that  did  r-  I  belong  to  him,    and    the 
consignee  will  be  entitled  to  the  delivery  of  the  goods,  with  an 
indemnification    for   the   expenses   that   have    been     incurred. 
*     *     •     It  is  not  an  unlimited   power  that  is   vested   in  the 
consignor,  to  vary  the  consignment  at  his  pleasure  in  all  cases 


7.0       MODES  or  OnTAlN.NG  TITLE  TO  PERSONAL  PUOrEUTV. 

Whatever.     It  is  a  privilege  allowed  to  the  seller,   for  the  par- 
ular  purpose  of  protecting  him  from   the   msolvency  of  the 
o  sK^nce.     Certainly  it  is  not  necessary  that  the  person  should 
be    ctually  insolvent  at  the   time.     If  the   insolvency  happen 
I  forethe'arrival,   it  would  be   sufficient  to  )"-' Y   - -t  ^a 
been  done,  and  to  entitle  the  shipper  to  the  benefit  o    h.s  own 
provisional  caution.     But    if   the    person   ,s  not   msolven^  the 
Lund  is  not  laid  on  which  alone  such  apr.v.lege  is  founded 
6C    Rob.  ^26.     In  the   case  of  Wilmshurst  v.  Bowker,  2  M. 
&  G.  792,  L2,  it  was  said  by  Tindal,  C.  J.:     "The  o,.hnary 
r^.ht  of  c;untermanding  the  actual  delivery  of  goods  sh.pped 
to'',  consignee,  is  limited  to  the  cases  in  wh.ch  the  bankruptcy 
r/nsolve;cy  ;f  the  consignee  has  taken  place    Jhe  law  as   o 
this  point  is  very  clearly   laid   down  by   Lord  Stowell.   m  the 

case  of  The  Constantia."  , 

This  statement  of  the  doctrine  of  stoppage  tn  transttu,  v^h.ch 
is  supported  by   such   high   authorities,    does   not    sustam    the 
"position  that  a  vendee,  insolvent  at  the  time  of  the  sale  of 
glods,  and  still  remaining  insolvent,  can  object  to  then- stoppage 
Z  transitu.     He  could  only  complain  when  his  msolvency  was 
lowrto  the  vendor  at  the  time  of  sale,   and  the  contract  was 
Zl  in  view  of  such,  his  condition.     The  object  m  allowmg 
the  privilege  to   the   vendor   being   his    protection   agamst  the 
n  oWency  of  the  vendee,  such  privilege,  unless  waived  by  the 
vendor,  ought  properly  to  extend  to  cases  of  insolvency  whether 
Existing  at  the  time  of  sale  or  occurring  at  any  time  before  the 
ac      1  delivery  of  the  goods.     A  vendee  who  disputes  the  ngh 
o     toppage  in  transitu   must  be   prepared  to   aver,  as  in  the 
c  se  o     Wilmshurst   v.    Bowker,  2  M.  &  G.   79^,  wh'ch  was 
an  iction  by  a  vendee  against  a  vendor  for  improperly  stopping 
he  d  Hvery  of  goods,  that  he  was  neither  bankrupt  nor  insol- 
v^.        Independently  of  any  circumstances  to  the  contrary   the 
vendee  might  have  the  benefit  of   a  presumption  of   ability  to 
comply  with  his  contract,  and  the  burden  of  showing  insolvency 
Th   be  cast  on  the  vendor.     It   may  be   that  this  would  be 
Efficiently  shown  by  the  proof  of  an  overt  act  of  msolvency 
1!.  stoppage    of    payment,    though,    in   fact,    an  actual 
nsolvency,  in  the  sense  of  not  having  means  adequate  to  the 
"ment  of  debts,  might  not  exist.     If  the  vendee,  before      e 
steppage  in  transitu,  had,  by  his  conduct  m  business,  affoided 


lOrERTV. 

for  the  par- 
Ivency  of  the 
Derson  should 
ency  happen 
ify   whot  has 
it  of  his  own 
insolvent,  the 
i  is  founded." 
Sovvkcr,  2  M. 
'The  ordinary 
;oods   shipped 
lie  bankruptcy 
The  law  as  to 
Itowell,   in  the 

<-ansitu,  which 
Dt  sustain  the 
of  the  sale  of 

1  their  stoppage 
nsolvency  was 

2  contract  was 
;ct  in  allowing 
on    against  the 

waived  by  the 
vency,  whether 
time  before  the 
sputes  the  right 
aver,  as  in  the 
793,  which  was 
operly  stopping 
;rupt  nor  insol- 
he  contrary,  the 
an  of  ability  to 
wing  insolvency 

this  would  be 
:  of  insolvency, 
fact,  an  actual 
adequate  to  the 
idee,  before  the 
Lisiness,  afforded 


nUXEDICT    V.   SCHAETTLE. 


711 


flic  ordinary  apparent  evidences  of  insolvency,  he  ought  not  to 
complain  of  the   precautionary   measure  taken  by  the  vendor, 
though  it  should  turn  out  that  he   was   ultimately  able  to  pay. 
But,  though    no   such   evidences  of  insolvency  should  precede 
the  stoppage  in  transitu,  still,  if  the  fact  of  insclvency  existed, 
the  vendee  ought  not  to  complain.     This,  at  le.<st,  is  clearly  to 
l>e  inferred  from  the  language  of  the  authority  which  has  been 
cited,  and  appears  entirely  reasonable  and  proper.     Fair  deal- 
ing will  be  better  insured  by  leaving  to  the  vendor  his  privilege 
of"stoppage  in  transitu,   in   all   cases   of    insolvency,  whether 
evidenced  by  the  ordmary  accompanying  acts,  or  shown  actually 
to  exist.      The  rights  of  a  fair  vendee   will  be  sufficiently  pro- 
tected by  giving  him  an  indemnity  when  the  right  of  stoppage 
in  transitu  is  exercised  upon   rumor  or   suspicion   without  any 
foundation  in  fact,  and  by  depriving  the  vendor,  in  all  cases,  of 
any  chance  of  speculating  upon  the  goods,  by  requiring  them 
to  be  delivered  or  accounted  for  to  the  vendee,  or  his  assignee, 
on  the  payment  or  tender  of  the  agreed  price. 

These  views  are  sustained   by  the  origin   and  nature  of  the 
doctrine    of   stoppage    in   transitu.     It  appears  to  have  been 
derived  from,  or  to  be  analogous  to,   the   revendication  of  the 
civil  law.     This    has   been   thus  defined:      "Revendication  is 
the  right  of   an  unpaid   vendor,    upon    the    insolvency  of  the 
vendee,    to   reclaim,    in    specie,    such    part   of   the    goods    as 
remains  in  the  hands  of  the  vendee  entire,  and  without  having 
changed  its  quality."     (In   re   Westzynthius,    2  Nev.   &  Man. 
6-0   note.)     In  Bell's  Commentaries  on  the  Laws  of  Scotland, 
cited   in  the   same   case,    it   is    said:      "The  privilege  to  stop 
-oods  in  transitu  is  a  qualified  extension  in  equity  of  that  rule 
of  mutual  contract,  by  which   either  party  may   withhold  per- 
formance, on  the  other  becoming  unable  to  perform  his  part." 
It  is  stated,  as  a  rule  introduced  into  the  common  law,  in  mod- 
ern times,  founded  on  principles  of  equ-ity,  and  borrowed  from 
the  foreign  or  continental  law,   thut  in   case   of   the     endee's 
bankruptcy  or  insolvency,  the  vendor  might  stop  and  take  back 
the  goods  in  transitu,  or  before  they  come  into  the  hands  of 
the  vendee.     Bell's  Comm.,  bk.  2,  pt.  2,  c.  i,  art.   3,  cited,  2 
Nev.  &  Man.  651,  652,  note;   Mackreth  v.  Symmons,  15  Ves. 
^i^.     It  is  "nothing   more  than   an  extension  of  the  right  of 
lien,  which,    by  the  common  law,  the  vendor  has  upon  the 


\ 


712       MODES  OK  OBTAINING  TITI.E   TO  PERSONAL  PROrEKTV. 

ooods  for  tlic  price,  originally  allowed  in  equity  and  subsc- 
riuentlv  adopted  as  a  rule  of  law."  Rowley  v.  Bigelow  i. 
Pick  '^07,  MV,  Atkins  V.  Colby,  20  N.  II.  154?  <-out  v. 
Hill "  4  Grav,  36, .  "A  kind  of  equitable  lien  adopted  by  the 
law  for  the  purposes  of  substantial  justice."  Hodgson  v  Loy, 
•7  T  R  44-..  In  the  case  of  McEwan  v.  Smith,  2  Ho.  L. 
Cas!  .09,  328,  it  was  said  by  Lord  Campbell,  that  "the  docti  ine 
of  stoppage  in  transitu  is  a  most  just  and  equitable  one,  and  I 
would  by  no  means  strive  to  limit  its  operation." 

If  the  "true  principle  of  the  right  of  stoppage  in  transitu  \.^ 
found  in  that  certainly  just  rule  of  mutual  contract,  by  which 
cither  party  may  withhold  performance,  on  the  other  becoming 
unable  to  perform  on  his  part;   if  the  foundation  of  the  rule  be 
a  just  lien  on  the  goods  for  the  price,  until  delivered,  an  equi- 
table  lien  adopted  for  the  purposes  of  substantial  justice,  then, 
it  is  the  ability  to  perform  the  contract-to  pay  the   price- 
which  is  the  material  consideration.     If  there    be    a   want  of 
ability,  it  can  make  no    difference    in   justice    or    good  sense, 
'whether  it  was  produced  by  causes,    or   shown    by  acts    at  a 
period  before  or  after  the    contract   of  sale.     Substantially,   to 
the  vendor  who  is  about  to  complete  delivery,  and  abandon  or 
lose  his  proprietary  lien,   the  question  is,  can  the  vendee  per- 
form the  contract  on  his  part;  has  he,  from  insolvency,  become 
unable  to  pay   the  price?     If  such  be  his  condition,  and  the 
vendor  has  not  precluded  himself  by  some  act  of  waiver,  the 
eeneral  principles  on  the  subject   and  justice  require  that  he 
should  be  allowed  to  exercise  the  right  of  stoppage  in  transitu. 
^    To  sustain  the  contrary  view  and  limit  the  right  of  stoppage 
in  transitu,  the  case  of  Rogers  v.   Thomas,  20  Conn    53,  .s 
relied  on,  in  which  it  was  decided,  that  to  authorize  the  exer- 
cise of  the  right  of  stoppage   in  transitu  there  must  be  some 
overt  act  of  insolvency,  and  that  it  must  intervene  between  the 
sale  and  the  exercise  of  the  right.     The  decision  in  the  case  of 
Rocers  v.  Thomas  was  not  made  on  the  authority  of  previous 
c.ses   but,  in  the  absence  of  such  cases,  upon  the  ground  that 
the  eeneral  definitions  or  statements  of  the  doctrine  of  stoppage 
,„  transitu  required  such  a  limit  to  the  exercise  of  the  right; 
and  particular  reference  is  made  to  the  general  statement  of  the 
doctrine  in  Smith's  Mercantile  Law,  547  [Am.  Ed.  677].     The 
very  first  authority  cited  by  Mr.  Smith  to  sustain  his  stuiement 


ROPERTY. 


BENEDICT    V.   SCIIAETTLE. 


7'3 


ty,  and  subsc- 
,  Bigclow,  12 
[54;  Grout  V. 
doptcd  by  the 
dgson  V.  Loy, 
lith,  3  IIo.  L. 
t  "thcdoctiiiic 
Ac  one,  and   I 

tu  iranstiu  be 
ract,  by  which 
ther  becoming 
of  the  rule  be 
rered,  an  equi- 
il  justice,  then, 
ly  the    price — 
be    a   want  of 
)r    good  sense, 
by  acts,  at  a 
ibstantially,   to 
nd  abandon  or 
lie  vendee  per- 
Ivency,  become 
dition,  and  the 
of  waiver,  the 
require  that  he 
age  in  transitu. 
ght  of  stoppage 
JO  Conn.  53,  is 
horize  the  exer- 
;  must  be  some 
ene  between  the 
n  in  the  case  of 
)rlty  of  previous 
the  ground  that 
rine  of  stoppage 
se  of  the  right; 
statement  of  the 
Ed.  677].    The 
^in  his  stuiement 


of  the  doctrine  is  the  case  of  Wilmshurst  v.  Bowkcr,  and  he 
.juotcs  the  remarks  of  Tindal,  C.  J.,  as  to  the  clearness  with 
\vhich  the  law  on  the  point  had  been  laid  down  by  Lord  StovvcU 
in  the  case  of  The  Constantia.  Interpreting  the  statement  of 
the  doctrine,  by  Mr.  Smith,  in  the  light  of  the  authorities  he 
cites,  and  it  is  manifest  that  he  never  intended  any  such  limit 
to  the  exercise  of  the  right  of  stoppage  in  transitu.  Nor  do 
we  think  the  terms  in  which  the  doctrine  of  stoppage  in  transitu 
is  stated  in  many  of  the  authorities,  would  justify  the  limit  sup- 
posed to  exist. 

It  was  said  by  Lord  Kenyon,  in  Ellis  v.  Hunt,  3  T.  R.  467, 
that  "t.ie  doctrine  of  stopping  goods  in  transitu  is  bottomed  on 
the  case  of  Snee  v.  Prescot,  i  Atk.  345,  where  Lord  Hardwicke 
established  a  very  wise  rule,  that  the  vendor  might  resume  the 
possession  of  goods,  consigned  to  the  vendee,  before  delivery, 
in  case  of  the  bankruptcy  of  the  vendee." 

The  doctrine  is  thus  stated  by  Lord  Hardwicke.  After 
referring  to  the  rule  that  an  action  against  a  carrier  for  loss  of 
goods  should  be  brought  in  the  name  of  the  consignee  he  pro- 
ceeds: "But  suppose  such  goods  are  actually  delivered  to  a 
carrier,  to  be  delivered  to  A.,  and  while  the  carrier  is  upon  the 
road,  and  before  actual  delivery  to  A.  by  the  carrier,  the  con- 
signor hears  A.,  his  consignee,  is  likely  to  become  bankrupt,  or 
is\ctually  one,  and  countermands  the  delivery,  and  gets  them 
back  in  his  own  possession  again,  I  am  of  opinion  that  no 
action  of  trover  would  lie  for  the  assignees  of  A.,  because  the 
goods,  while  they  were  in  transitu,  might  be  so  counter- 
manded."    Snee  v.  Prescot,  i  Atk.  348. 

In  a  case  before  cited  it  is  said  by  Lord  Campbell:  "What 
is  stoppage  i«  transitu}  It  is  this,  that  where  a  vendor  of 
-oods  has  to  send  them  to  a  vendee,  and  has,  for  that  purpose, 
parted  from  them  to  a  carrier,  he  may,  upon  hearing  of  the 
insolvency  of  the  vendee,  while  they  remain  in  the  hands  of  the 
carrier,  and  before  delivery  to  the  purchaser,  stop  their  deliv- 
ery."    McEwan  v.  Smith,  2  Ho.  L.  Case,  33S. 

In  the  case  of  Donath  v.  Broomhead,  7  Barr,  301,  303,  it  is 
said:  "The  right  of  a  vendor,  on  the  discovery  of  the  bank- 
ruptcy or  insolvency  of  the  party  to  whom  he  has  s^old  goods  on 
credit  to  retake  them  before  actual  or  complete  delivery,  is  the 
well  settled  doctrine  of  both  courts  of  law  and  equity." 


714       MODKS  Ol-  OliTAlNING  TITLE  TO  PERSONAL  PKOPEKTY. 

In  tl.e  case  of  Hays  v.  Mouillc,  14  Pa-  St.  4S,  the  judge,  :n 
his  charcrc  to  the  jury  (and  his  views  were  expressly  adopted 
by  the  court  of  error),  after  stating  that  the  insolvency  ot  the 
vendee  was  the  ground-work  of  the  plaintiff's  claim,  thus  put 
the  question— Was  the  vendee  "insolvent  whe-  these  goods 
were  replevied  by  the  plaintiffs?  It  is  not  necessary,  to  prove 
insolvency,  that  he  should  have  been  declared  a  bankrupt  or 
insolvent  by  a  judicial  tribunal,  nor  that  he  should  have  made 
an  assignment  of  his  property.  If  the  fact  exist,  no  matter 
how  proved,  if  sutficiently  and  satisfactorily  proved,  the  law 
requires  no  more."  In  that  case  the  evidence  tended  to  show 
that  the  vendee  was  insolvent  when  the  goods  were  bought,  and 
the  judge  further  said:  -You  have  the  testimony  of  Baker 
that  Rhodes  was  indebted  some  $60,000,  and  that  his  assets 
were  but  $26,000,  and  that  his  creditors  were  watching  for 
these  goods  on  the  line  of  transportation,  and  actually  attached 
them  before  they   reached   Ohio,   for  debts   which   he  was  not 

able  to  pay."  ^  „    ^^       , 

In  the  case  of  Stevens  v.  Wheeler,  27  Barb.  65S,  663,  there 
is  this  statement  of  the  rules  on  the  subject  of  stoppage  m 
transitu:  "that  the  vendor  has  a  right  to  stop  goods  sold  by 
him  when  he  discovers  the  vendee  to  be  insolvent,  at  any  time 
while  the  goods  are  in  transitu.  That  the  transitus  continues 
until  the  goods  reach  the  place  of  destination,  unless  sooner 
terminated  by  the  act  of  the  vendee.  That  the  delivery  to  the 
vendee  of  the  goods,  or  a  part  of  them,  or  a  delivery  to  his 
agent  or  to  a  bona  jidc  purchaser  from  him,^  ter.ninates  the 
right  of  the  vendor  of  the  goods  to  stop  them." 

Not  only  do  the  general  statements  of  the  doctrine  fall 
short  of  sustaining  the  decision  in  Rogers  v.  Thomas,  but,  in 
several  cases,  where  the  question  was  involved,  it  was  differ- 
ently decided.  Such,  we  think,  was  the  case  of  Hays  v. 
Mouille,  14  Pa.  St.  48,  before  noticed.  There,  it  is  evident, 
the  insolvency  existed  at  the  time  of  the  sale  of  the  goods, 
and  it  was  proved,  not  by  any  overt  act,  but  by  a  compari- 
son of  the  amount  of  liabilities  with  the  amount  of  assets. 

The  decision  in  the  case  of  Buckley  v.  Furniss,  15  Wend. 
137  appears  to  be  directly  opposed  to  that  in  Rogers  v. 
Thomas.  In  Buckley  v.  Furniss,  the  point  was  made  that 
the  vendor,  at  the  time    of  the  sale,  knew  the  circumstances 


lOI'EKTY. 


BENEDICT    V.   SCIIAETTI.E. 


•'5 


the  judge,  in 
jssly  adopted 
Ivency  ot  the 
aim,  th'is  put 

these  goods 
iiiry,  to  prove 
a  bankrupt  or 
Id  have  made 
3t,  no  matter 
)vcd,  the  h\\\ 
nded  to  show 
e  bought,  and 
my  ot  Baker 
that  his  assets 

watching  for 
lally  attached 
;h   he  was  not 

58,  663,  there 
>f  stoppage  in 
goods  sold  by 
It,  at  any  time 
itus  continues 
unless  sooner 
Llelivery  to  the 
lelivery  to  his 
er.ninates   the 

doctrine  fall 
omas,  but,  in 
I,  it  was  differ- 
;  of  Hays  v. 
:,  it  is  evident, 
!  of  the  goods, 
by  a  compari- 
of  assets, 
niss,  15  Wend. 

in  Rogers  v. 
was  made  that 
B  circumstances 


of  the  vendee,  who  was  then  insolvent.  It  was  said  by  Bron- 
bon,  J.:  "The  sale  was  no  doubt  absolui.,  whether  the 
plaintiff  knew  that  Titus  was  in="1vent  or  <\ut;  and  so  are  most 
sales,  where  the  vendor  afterward  exercises  the  riglit  of  stop- 
pasfc  in  transitu.  The  right  of  the  vendor  to  resume  possession 
ol  goods  sold  on  credit,  in  case  of  the  insolvency  of  the  con- 
siunec,  before  they  come  to  his  hands,  does  not  depend  upon 
aiiv  co.idition,  or  other  peculiarity  in  the  contract  of  sale,  but 
proceeds  on  the  ground  of  an  equitable  lien.  Still,  it  may  be, 
and  probably  is  true,  that  if  the  plaintiff  sold  the  iron,  with  a 
lull  knowledge  of  the  situation  of  the  vendee,  he  could  not 
alterward  exercise  the  right  of  stoppage  in  transitu ;  but  the 
argument  is  not  borne  out  by  the  facts."  The  judge  then  pro- 
ceeds to  show  by  a  reference  to  the  facts,  that,  although  the 
vendee  was  insolvent  at  the  time  of  the  sale,  it  was  not  known 
lo  the  vendor,  who,  therefore,  had  the  right  to  retake  the  goods. 
Tills  case  was  cited  by  counsel,  in  Rogers  v.  Thomas,  but  was 
not  noticed  in  the  opinion  of  the  court. 

There  are  other  cases  in  which  the  decision  did  not  turn  on 
the  question  of  insolvency,  the  contest  in  this  class  of  cases 
havino- generally  been  as  to  the  termination  of  the  transit;  but 
where  it  appears  either  directly  or  by  strong  inference,  that  the 
insolvency  existed  at  the  time  of  sale.  Such  a  case  is  Biggs  v. 
Harry,"-  2  Curtis,  259,  in  which  it  clearly  appears  that  the  insol- 
vency existed  at  the  time  of  sale ;  but  the  case  was  given  to  the 
jury  on  the  question,  simply,  whether  the  transit  had  ended, 
without  any  reference  to  the  time  of  insolvency. 

In  the  cases  of  Stubbs  v.  Lund,  7  Mass.  453,  and  Ilsley  v. 
Stul)bs,  9  Mass.  65,  what  was  regarded  by  the  court  as  the  sale 
of  the  goods,  their  shipment  on  order,  was  after  the  insolvency 
nt  the  vendee,  and  yet  the  exercise  of  the  right  of  stoppage  in 
tiansitii  was  sustained. 

The  point  might  have  been  made,  and  if  sustained  would 
have  changed  the  decision  in  the  case  of  Litt  v.  Cowley,  i 
Holt.  338,  3  Eng.  Com.  L.  138,  as  is  shown  by  Waite,  J.,  in 
his  dissenting  opinion  in  the  case  of  Rogers  v.  Thomas.  It 
may  not  be  conclusive  against  the  correctness  of  a  legal  propo- 
siiion,  that  it  was  not  presented,  when  from  the  facts  involved 
it  might  have  been.  But  when  this  has  occurred  in  a  number 
ol  cases,  where  it  is  to  be  supposed  that  both  counsel  and  court 


y 


7l6       MOUKS  Ol-  OUTAINING   TrrMC  TO   I'F.IISONAI.   I'K.  il' IK  TV. 

arc  well   informed   as  to  the    rules   of   law,  it   is   a  reasonable 
inference  that  the  point  was  not  made  because  it  was  deemeil 

unten:d)le. 

We  have  not  been  able  to  find,  and  our  attention  has  not  been 
called  by  coun^-el  to  any  decision  which  sustains  the  restriction 
on  the  right  of  stoppage  in  transitu  laid  down  ni  Rogers  \ . 
Thomas;  but  it  has  been  adopted  as  a  rule  of  law  in  several 
elementary  works.  It  appears  to  be  approved  in  i  Parsons  on 
Contracts.  47O,  47S,  but  that  approbation  is  omitted  in  tlic 
work  of  the  same  author  on  Mercantile  Law,  and  withdrawn. 
and  a  grave  doubt  substituted,  in  his  more  recent  work  on 
Maritime  Law,  i  Vol.  369. 

We  are  satislied  that  the  restriction  can  not  be  maintainitl 
either  on  principle  or  authority. 

In  accordance  with  the  views  which  have  been  expressed, 
the  judgment  of  the  superior  court  of  Cincinnati  will  bo 
affirmed.  Judgment  affirmed. 

Consult— Farrell  v.  R.  Co.,  102  X.  C.  390,  11  Am.  St.  Rep.  60;  Loeb 
V.  Peters,  63  Al.i.  243.  .IS  Am.  Rep.  17;  Blum  v.  Marks,  21  La.  Ann.  26S, 
99  Am.  Dec.  7:5;  O'Brien  v.  Norris,  16  Md.  122,  77  Am.  Dec.  284; 
Kingman  v.  Denison,  S\  Mich.  608;  Fenkliausen  v.  Fellows,  aoNev.  3U. 


§  120.    Same— Disregard  of  notice  to  carrier. 
JONES  V.  EARL. 


[37  Cal.  630.] 
Stiprcine  Court  of  California,  July,  l86g. 

Appeal  from  the  district  court,  sixth  judicial  district,  Sacra- 
mento county. 

The  action  was  against  a  forwarder  for  the  conversion  of 
goods.  The  following  is  a  copy  of  the  letter  which  is  referred 
to  in  the  opinion  of  the  court: 

"San  Francisco,  November  18,  1S67.     Messrs.  D.  W.  Earl 
&  Co. :     Gents — On  the  eleventh  instant  we  shipped  to  your 
care  the  following  goods,  viz. :     Two  barrels  whisky.     Two 
casks    ale.     Two    casks    porter.     Four   baskets   champagne- 


I'Kdi'inirv. 

is  a  reasonable 
:  it  was  deumt'd 

nil  has  not  hccii 
s  tlio  rc'strictio:i 
11  ill  Rofjjcis  V. 
:  law  ill  scvcr;il 
in  I  Parsons  on 
omitted  in  tlic 
luid  withdrawn. 
ecent  work   on 

t  be  maintained 

been  expressed, 
cinnati  will  be 
gment  atlirmed. 

St.  Rep.  60;  Loeb 
5,  21  La.  Ann.  26S, 
77  Am.  Dec.  284  ; 
Hows,  2oNev.  31^. 


ir. 


JONKS    V.    KAUL. 


717 


,  1869. 


district,  Sacra- 


e  conversion  ot 
vhich  is  referred 

srs.  D.  W.  Earl 

shipped  to  your 

whisky.     Two 

ets   champagne- 


r.nir  cases  Ilostetter's  bitters.     Marl<ed :     F.  M.  A.,  Virginia 
City.      Care,  'Karl,'  Cisco. 

"If  the  goods  have  not  been  forwarded  yet  from  Cisco,  please 
l„dd  on  to  them  till  yon  hear  from  us  again,  as  the  party  to 
wlioin  thev  were  consigned  at  Virginia  has  been  attaciied,  and 
wu  want  to  save  the  goods.  If  they  have  been  forwarded  from 
Cisco,  please  instruct  your  agent  at  Virginia  to  deliver  the 
jroods  to  no  one  but  our  agent,  Mr.  J.  A.  Hycrs,  who  will  be 
at  Virginia  on  the  lookout  for  the  goods.  Please  vrite  us 
immediately  whether  the  goods  have  been  sent;  if  not,  Mr. 
livers  will  call  for  them  at  Cisco.  Very  respectfully,  Biggs  & 
Jones." 

Saxdkusov,  J.— Stoppage  in  transitu  is  a  right  which  the 
vendor  of  goods  upon  credit  has  to  recall  them,  or  retake  them, 
upon  the  discovery  of  the  insolvency  of  the  vendee,  before  the 
goods  have   come   into  his  possession,  or  any  third  party  has 
acquired  bona  fide  rights  in  them.     It  continues  so  long  as  the 
carrier  remains  in  the  possession  and   control  of  the  goods,  or 
until  there  has  been  an  actual  or  constructive  delivery  to  the  ven 
dec,  or  some  third  person  has  acquired  a  bona  fide  right  to  them. 
I'pon  demand  by  the   vendor,  while  the  right  of  stoppage   in 
transitu  continues,  the  carrier  will  become  liable  for  a  conver- 
sion of  the  goods,  if  he  decline  to  redeliver  them  to  the  vendor, 
or  delivers  them  to  the   vendee.      Markwald  v.  His  Creditors, 
7  Cal.  213;   Blackman  v.  Pierce,  23  Cal.  50S ;   O'Neil  v.  Gar- 
rett,  6  Iowa,   4S0;    Reynolds  v.     Railroad,    43   N.    H.    5S0. 
And  a  notice  by  the   vendor,    without   an  express   demand  to 
redeliver  the  goods,  is  sufficient  to  charge  the  carrier.     If  the 
currier  is  clearly  informed   that  it  is  the  intention  and  desire  of 
the  vendor   to  exercise   his  right  of  stoppage   in  transitu,  the 
notice  is  sufficient.       Reynolds  v.   Railroad,    s/(J>ra;    Litt  v. 
Cowley,  7  Taunton,    169;   Whitehead  v.  Anderson,  9  M.   & 
W.  51S;   Bell  V.  Moss,  5  Wharton,    1S9.     And  notice  to  the 
a-cnt  of  the  carrier,  who  in  the  regular  course  of  his  agency  is 
in  the   actual   custody   of  the  goods   at  the  time  the  notice  is 
-nvcn,  is  notice  to  the  carrier.     Bierce  v.  Red  Bluff  Hotel  Co., 

y  Cal.  160. 

The  case  made  by  the  record  shows  that  the  goods  in  ques- 
tlun  were  consigned  to  the  care  of  the  defendant  at  Cisco,  to  be 


y 


7iS 


MODKS  OK  ODTAINING  TITLK  TO  IMCUSONfAL  PHOlMCIirV. 


forwai-acl  bv  him  in  tlie  usual  course  of  business  to  the  vcnde. 
.,t  Virginia  Citv.     Tluit  the  defcntlant   was  engaged  in  the  for - 
wurdin-  business  at   Sacramento,  and   iiad   an   ap;ent  at  Cisc- 
whose  business  it  was  to  receive  all  Roods  shipped  to  the  car. 
of  defendant,  and  deliver  them  to  the  order  of  the  vendee  upon 
pavment  of  char-es  and  commissions.      That,  while  the  goods 
were   at   Cisco,  and   in  the   custody  of   the  defendant's  agent, 
who  had  full  charge  of   the  forwarding  business  at  that  place, 
a  letter  from  the  plaintiff,  addressed  to  the  defendant  at  Cisco, 
containing  a  l)ill  of  the  goods,  and  informing  the  defendant  that 
the  vendtTe  had  been  attached,  and  that  he  wanted  to  save  the 
goods,  and  directing  the  defendant  not  to  deliver  the  goods  to 
any  one  except  his  (the   plaintiffs)   agent  at   Virginia,   who 
would  be  looking  out  for  them,  was  received  by  the  defendant's 
agent  at  Cisco.     That  the  defendant,  by  his  agent,   acknowl- 
edged the  receipt  of  the  letter,   and  stated  that  the  goods  were 
''in  store  and  he  would  hold  them  subject  to  the  order  ot  Byers  ' 
(plaintiff's  agent).     That  afterward  the   vendee  of  the  goods 
came   to  the   agent  of  defendant  and,  tendering  charges   and 
commissions,   demanded   the   goods,  and  that  the  demand  was 
complied  with.     That  the  vendee  was  insolvent  at  the  date  of 
the  notice  to  defendant's  agent  that  the  plaintiff  desired  to  stop 
the  goods  in  his  hands. 

In  view  of  these  facts,  and  the  law  as  above  declared,  the 
defendant  is  clcarlv  liable  for  a  conversion  of  the  goods. 

Judgment  and  order  affirmed. 

CoNSVLT-Xevvhall  v.  Vargas,  13  Mc  93,  29  Am.  Dec.  489;  Rucker  v. 
Donovan,  13  Kan.  .5^ ;  Allen  v.  R.  Co.,  79  Me.  3^7;  R«>"°'^'^  '■  ^J"  ^C^J' 
4,  X  11.  sSo;  Mottram  v.  Meyer,  5  Denio,  634;  Bell  v.  Moss,  5  Whar.. 
206;  TheE.  11.  Pray,  27  Fed.  Rep.  474!  Potts  v.  R.  Co.,  131  Mass.  4551 
Far'rell  v.  R.  Co.,  102  N.  C.  390. 


§  121.    Same— Delivery,  when  complete. 

TUFTS  V.  SYLVESTER. 
[79  Me.  213.] 
Supreme  Judicial  Court  of  Maine,  1887. 
Trover  by  the  vendor  of  merchandise  against  the  messenger 
of  the  insolvent  vendee.     The  opinion  states  the  facts. 


HOIMCIIIY. 


TUFTS    V.   SYLVESTER. 


719 


to  the  vcndei 
ed  ill  Uic  for- 
piciit  at  Cisci' 
ed  to  the  call 
t  vendee  upon 
lile  tlie  goods 
idant's  agent, 
at  that  place, 
dant  at  Cisco, 
defendant  that 
ed  to  save  the 
■  the  goods  to 
Virginia,   who 
he  defendant's 
;ent,   acknowl- 
hc  goods  were 
rder  of  Byers" 
2  of  the  goods 
r  charges   and 
e  demand  was 
:  at  the  date  of 
desired  to  stop 

e  declared,  the 
e  goods, 
order  afHrmed. 

c.  489;  Rucker  v. 
ytioUis  V.  R.  Co.. 
f.  Moss,  5  Whart. 
0.,  131  Mass.  455; 


1887. 

it  the  messenger 
le  facts. 


Peters,  C.  J. — The    plaintiff  sold  a  bill   of  goods   to   be 
^hipped  at  Boston  to   the   buyer  at  Farmington,  in   this   state. 
I'he  buyer,    becoming  insolvent   after  the    |)urchase,    counter- 
manded the  order,  but  not  in  season  to  stop  the  goods.     Belore 
tlie  goods  came,  he  h.id  gone  into   insolvency,  aiul  a  messenger 
iiad  taken  possession   of  his   property.     An   express  company 
liringing  the  goods  tendered   them   to   the   buyer,  who  refused 
to  receive  them,  but   the  messenger   accepted   the   goods    from 
the  carrier,  paying  his  charges  thereon.      After  this,  but  before 
an  assignee   was   appointed,  the   seller   made   a   demand  upon 
Iioth  the  carrier  and  the  messenger,  attempting  to   reclaim  his 
goods.      The  question,  upon  these   facts,  is  whether  the  goods 
were   seasonably  stopped  in  transitu   to  preserve  the   plaintiff's 
lien  thereon.     We  think  they  were.     The  right  of  stoppage  in 
transitu  is  favored  by  the  law.     It  is   clear  that   the  goods  did 
not  go  into  the    buyer's    possession.     lie    refused   to    receive 
them.     lie  had  a  moral  and  legal  right  to  do  so.     Such  an  act 
is  commended  by  jurists  and  judges.     He   in  this  way  makes 
reparation  to   a  confiding  vendor.     "He   may   refuse  to  take 
))ossession,"  says  Mr.  Benjamin,  "and  thus  leave  unimpaired 
the  right  of  stoppage  in  transitu,  unless  the  vendor  be  antici- 
pated in  getting  possession  by  the    assignees  of  the   buyer." 
Benj.  Sales,  section  S5S.  In  Grout  v.  Hill,  4  Gray,  361,  Shaw, 
C.  J.-,  says:   "Where  a  purchaser  of  goods  on  credit  finds  that 
he  shall  not  be  able  to  pay  for  them,  and  gives  notice  thereof 
to  the  vendor,  and  leaves  the  goods  in  possession  of  any  per- 
bon,  when    they    arrive,  for   the   use   of   the  vendor,  and  the 
vendor  on  such  notice  expressly  or  tacitly  assents   to  it,  it  is  a 
good    stoppage    in   transitu,  although   the    bankruptcy    of  the 
vendee   intervene."     See   same    case    at   page    369;     i    Pars. 
Cont.  *596,  and  cases. 

The  decision  of  the  case,  then,  turns  upon  the  question 
whether  the  messenger  could  accept  the*  goods,  and  terminate 
the  lien  of  the  vendor.  We  do  not  find  any  authority  for  it. 
A  bankruptcy  messenger  acts  in  a  passive  capacity ;  is  intrusted 
with  no  discretionary  powers;  acts  under  mandate  of  court,  or 
does  certain  things  particularly  prescribed  by  the  law  which 
creates  the  oflfice;  is  mostly  a  keeper  or  defender  of  property, — 
a  custodian  until  an  assignee  comes;  and  he  can  neither  add  to 
i!or  take  from  the  bankrupt's  estate.     He  is  to  take  possession 


\ 


7^0       MOUF.S  OF  OnTAININ'O   Tl  .I.K    lO   I'F.USONAL  niOPKIlTY. 

Of  the  "estate"  of  the  hi.olvent.      These  floods  ha.l  not  become 
fl  part  of  the  estate,     lie  was  not  at  liberty  to  alhrm   or  d.s- 
.tlirni  anv  act  of  the  insolvent.      The   huv    iniposes  on  h.m  no 
such  responsibility.     Chancellor  Kent  says  that  the  trans.t  is 
„„t  cn.le.l    Nvhilc    the  «o„cls  arc   in  the  hands  of  a  carrier  or 
nii.Ullc-man.     A  messen-er  has  no  greater  authority,  ex  olhc.o, 
than  a  nVuUUeMnan.  exceptlnfj    as    the    insolvent   law  expressly 
prescribes.     In  lliUiard's   Bankruptcy  (pa-e    lo.)  the  olhce  of 
„  messenger   is  likened  to  that  of   a   sheriff  under  a  wr.t.     He 
becomes  merelv  the  recipient   of    pn.perty.     The    t.tlc   of  the 
assignee  when'appointed,  dates  back  of  the  appointment  of  a 
messenger.     Until  appointment  of  assignee,  the  bankrupt  h.m- 
self  is  a  proper  person   to  tender  money  for  the    redemption  ol 
lands  sold  for  taxes.     Hampton  v.  Rouse,  22  Wall.  203.     See 
Stevens    v.  Palmer,    12    Mete.  ^C.l.     The    case   cited    by    the 
plaintiff,  Sutro  v.  Iloilc,  2  Neb.  .86,  supports  this  contention. 
*  Defendant  defaulted. 

CoN-svi.T-Kingman  v.  Denison,  84  Mich.  6.1;  Harris  v.  Pratt  .7  N- 
Y  2,2;  St-vmour  V.  Newton,  105  Mass.  272;  Harris  v.  Tenney,  85  lex. 
2,4.  Calahan  v.  Habcock,  21  Olaio  St.  29.?;  Aguirre  v.  Parmlce,  22 
Conn.  4S2;  Inslee  v.  Lane,  57  N-  "•  4iS,  6<,  An..  Rep.  S^^^-y"^ 
Joslyn,  20  Vt.  177.  49  An..  Dec.  7^.8;  I-^nsstaft  v.  St.x  64  Mass.  17., 
to  \..i  Rep.  49;  Diel.l  v.  McCor.nacIc,  143  Va.  St.  5S4;  Poole  v.  R.  Co., 
58  Tex.  134;  Mason  v.  Wilson,  43  Ark.  172;  Buckley  v.  Fiuness,  17 
Wend.  504. 


§  122.    Same-Rights  of  assignee  of  bill  of  lading. 
NEWIIALL  V.  CENTRAL  PAC.  R.  CO. 

[51  Cal.  345-] 
Supreme  Court  of  Califoruia,  1876. 

Appeal  from  district  court,  fifteenth  judicial  district,  city  and 
county  of  San  Francisco. 

Crockett,  J.— This  case  comes  up  on  the  findings,  and 
there  is,  therefore,  no  controversy  as  to  the  facts;  the  only 
question  being,  whether  the  plaintiffs  are  entitled  to  judgment 
on   the   facts  found.     The  facts   necess.iry  to  a  correct  under- 


ItOPKIlTY. 


NEWHAM.    V.  CENTRAr-    PAC.   R.  CO. 


1(1  lint  become 
allirm  or  dis- 
cs on  liim  no 

the  transit  is 
f  a  earlier  or 
rity,  ex  ollicio, 

law  expressly 
[)  the  olVice  of 
:y  a  writ.  He 
le  title  of  the 
pointment  of  a 
i)anlsnipt  him- 
redemption  ol" 

all.  263.     See 

cited    by    the 

liis  contention. 

dant  defaulted. 

'is  V.  I'riitt,  17  N. 
Tenney,  85  Tex. 
B  V.  P.irmlce,  22 
jp.  51;  Sawyer  v. 
tix,  64  Mass.  171, 
;  Poole  V.  R.  Co., 
iy  V.  Fiirness,  17 


ading. 
R.  CO. 

district,  city  and 


be  findings,  and 
:  facts;  the  only 
:led  to  judgment 
i  a  correct  under- 


"-tanding  of  the  oidy  question  of  law  in  the  case  arc,  that  a  mcr- 
cantile  firm  in  New  York  sold  certain  merchandise  on  credit  to 
.1  viimilar  firm  in  San  Francisco,  and  shipped  the  same  in  the 
u>iiial  course  of  business,  by  railway,  to  the  vendees  as  con- 
--ignees,  under  bills  of  lading  in  the  usual  form.  The  bills  of 
lading  were  received  at  San  Francisco  by  the  consignees  before 
the  goods  arrived;  and  while  the  merchandise  was  in  transit, 
ill  the  custody  of  the  defendant  as  a  common  carrier,  the  con- 
signees failed,  and  became  insolvent,  and  thereupon  the  ven- 
dors notified  the  defendant  in  writing  that  they  stopped  the 
(,'oods  in  transitu  ;  that  the  vendees  had  become  in.solvcnt,  and 
the  goods  were  not  paid  for,  and  that  they  must  not  be  deliv- 
ered to  the  consignees,  but  to  the  vendors.  The  plaintiffs  then 
were,  and  for  many  years  had  been,  auctioneers  and  commis- 
sion merchants,  doing  business  in  San  Francisco,  and  had  been 
in  the  habit  of  receiving  from  the  consignees  bills  of  lading,  and 
ooods  under  them,  for  sale  on  commission.  About  two  hours 
after  the  notice  of  stoppage  in  transitu  was  served  upon  the 
defendant,  the  consignees  indorsed  and  delivered  the  bills  of 
lading  to  the  plaintiffs,  who,  on  the  faith  thereof  and  of  the 
jjoods  named  therein,  "advanced  a  sum  of  money  to  the  con- 
signees in  the  usual  course  of  business;"  and  the  sum  so 
advanced  was  to  be  reimbursed  out  of  the  proceeds  of  the 
goods',  which  were  to  be  sold  at  auction  by  the  plaintiffs.  At 
tiie  time  of  the  indorsement  and  transfer  of  the  bills  of  lading 
to  the  plaintiffs,  they  had  no  notice  that  the  consignees  were  in 
failing  circumstances,  or  had  failed,  or  that  any  notice  of  stop- 
page in  transitu  had  been  served  upon  the  defendant.  While 
the  goods  were  still  in  the  possession  of  the  defendant  as  a  com- 
mon carrier,  the  plaintiffs,  as  holders,  exhibited  to  the  defend- 
ant the  bills  of  lading,  tendered  the  charges,  and  demanded  a 
delivery  of  the  goods,  which  was  refused,  and  the  action  is  to 
recover  their  value. 

The  question  involved  being  one  of  great  practical  import- 
nnce,  it  has  been  discussed  by  counsel  both  orally  and  in 
printed  arguments,  with  learning  and  ability.  But  after  the 
most  careful  research,  they  have  failed  to  call  to  our  attention 
a  single  adjudicated  case  in  which  the  precise  question  under 
review  has  been  decided  or  discussed.  There  are  numerous 
46 


\ 


7^3       MOOES  O.  OnXAlNINO  TITLE  TO  PHUSONAI,  PUOPEaTV. 

•  ^t  tViP  hill  of  lad  (V,  WHO  took  it  in  goou 

S'r  T^   con  -dLlon,    £  ...e  ,.s.,a.   course  o, 
taitn,    lor    a    %aiu.i  ipiriino'  case  on 

.„.i„css  before  .he  »«'-P-;„2TfT"rJR  *'  author- 

this  noint  is  Lckb arrow  v.  Mason  (.2  leim         ^y, 

Xhieh  ha,  been  almost  ""'--"^ -■'^X;     Th 
.        A  ^^^rf  vviitprs   in  th  s  countrv  and  in  bngiana.      xncii- 
courts  and  >«■"■«'»:"  ^,,,.,„  „„  „„  poi„,  ,dj„Ji. 

:"!  :t  "c  °e  i  w  Id  be  useless  to  recapitulate  them  here. 
B,T.  'tporTan.  o  ascertain  the  principle,  which  ..nderl.e 
t:j'd';isL,..ha..e..<..^^^^^^^^^^^^ 

^rsi.  td':a;x::i=  ::^z  'sl  th^; ..  vendee 

n„t  ,t  ■    fntthe.  settled    y  J  ^^^  ^^  ^  ^^^^^  ^^^  p„,. 

S  r  r:*  1:  con'std'erlion  belore  the  rl.ht  o.  .oppa.e 

*rerci,ed,   the   Hen  oi    .he  ™"t  thirrseL"  »  t  » 
assignee,  on  the  well  k"°-"  P""-P'=  ^'^  j.V;;;", ".e  „f  the 
no.  be  enforced  as  agamst  a  bona  ^.M^'J  ^  „„do,  and 

,.,al  title.  In  f-^-^;,'' ''n'd  li  "c  r  ainly  the  light 
assignee  be  cons^er.d  H-'  (  f  J'.^,^  ^^^  ,^^„.,/,„„  c,„  „e 
mos.  favorable  .o  .lie  ""do'  ^_^^  ^  ^^^^| 

regarded),  .he  rnle  «PP  "'  *»  ^^^^^ ,',  's,  ?,  „ould  be  diffi- 

.„d  a  person  dealing  with  b,„  "  *;"■       -.^_^^.^__^    ^.^^^^,^ 
rrtTsTcirrur's-as  render  the  hi;,  of  lading  not 


,  PROPERTY. 


NEWHAI.L    V.  CEN'IRAI.    PAC.   R.   CO. 


723 


.  the  effect  that 
e  vendee,  under 
e,  an  ai^enr.pt  hy 
b-  unavailng  as 
)  took  it  in  good 

visual  course  of 
e  leading  case  on 
.  63),  the  authov- 
[uiesced  in  by  the 
England.     There 

the  point  adjudi- 
itulate  them  here. 
s  which  underlie 
at  extent,  if  at  all, 
he  first,  and,  as  I 
ese  casts,  is,  that 
ods  passes  to  the 
lor  for  the  unpaid 

the  ,(|joods  are  in 
)n  that  the  vendee 
in  transit. 

,  the  right  of  stop- 
gainst  the  vendee. 
s,  that  if  the  bill  of 

to  a  bona  fide  pur- 
,e  right  of  stoppage 
ses    as   a^aiiisc  the 

a  secret  trust  will 
ier  for  value  of  the 

c£  the  vendor  and 

certainly  the  light 
e  transaction  can  he 
le  equities  are  equal 
ase  it  would  be  difli- 
d.  The  vendor  has 
iidee  a  muninrient  of 
;iship  of  the  -roods; 
1  course  of  business, 
nsideration,  without 
he  bil'  of  lading  not 


fairly  and  honestly  assignable,"  has  a  superior  equity  to  that  of 
the  vendor  asserting  a  recent  lien,  known,  perhaps,  only  to 
himself  and  the  vendee.     Brewster  v.  Sime,  43  Cal.  139. 

These  being  the  conditions  which  determine  and  control  the 
relative  rights  of  the  vendor  and  assignee,  where  the  assign- 
ment is  made  before  the  notice  of  stoppage  is  given,  precisely 
(lie  same  principles,  in  my  opinion,  are  applicable  when  the 
assignment  is  made  after  the  carrier  is  notified  by  the  vendor. 
Notwithstanding  the  notice  to  the  carrier,  the  vendor's  lien 
continues  to  be  onlv  a  secret  trust  as  to  a  person,  who,  in  the 
language  of  Mr  l>enjamin,  in  his  work  on  Sales,  section  S66, 
takes  an  assignment  of  a  bill  of  lading  "without  notice  of  such 
circumstance  as  renders  thi  bill  of  lading  not  fairly  and  hon- 
estly assignable."  The  law  provides  no  method  by  which 
third  persons  are  tj  be  affected  with  constructive  notice  of  acts 
tran^-piring  between  the  vendor  and  the  carrier;  and  in  dealing 
with  the  vendee,  whom  the  vendor  has  invested  with  the  legal 
title  and  apparent  ownership  of  the  -oods,  a  stranger,  advanc- 
ing his  money  on  the  faith  of  this  ap^  cntly  good  title,  is  not 
bound,  at  his  peril,  to-  ascertain  whether,  possibly,  the  vendor 
may  not  have  notified  a  carrier — it  may  be  on  some  remote 
portion  of  the  route — that  t!  e  goods  are  stopped  in  transitu. 
If  a  person,  taking  an  assignment  of  a  bill  of  lading,  is  to 
encounter  these  risks,  and  can  talie  the  assignment  with  safety 
only  after  he  has  inquired  of  the  vendor,  and  of  every  carrier 
ttirough  whose  hands  the  goods  are  to  come,  whether  a  notice 
of  stoppage  in  transition  has  been  given,  it  is  quite  certain  that 
prudent  persons  will  cease  to  advance  money  on  such  securities, 
and  a  very  important  class  of  commercial  transactions  will  be 
practically  abrogated.  In  my  opinion  the  judgment  should  be 
alhrmed,  and  it  is  so  ordered. 

Consult — Illsey  v.  Stubbs,  9  Mass.  65;  Pattfson  v.  Culton,  33  Ind. 
240,  5  Am.  Rep.  197 ;  Eaton  v.  Cook,  32  Vt.  58 ;  Naylor  v.  Dennie,  8  Pick. 
19S,  19  Am.  Deo.  319;  Rucker  v.  Donovan,  13  Kan.  251,  19  Am.  Rep.  84; 
Lee  V.  Kimball,  45  Me.  172. 


y 


leamnn 


7.4      MODES  or  OBTAINING  TITLE  TO  PEKSONAL  PKOPKHTV. 

§  123.    The  buyer's  remedies-Daxnages  for  nondelivery. 
WHITMARSH  v.  WALKER. 

[I  Met.  313O 

Safrcme  Judicial  Court  of  Massachusetts.  1840. 

T      This  iction  is  founded  on  a  parol   agreement, 

Wilde,  J.— ihis   acuon  ,„,,.„  the  olaintiff  two  thou- 

thereby  the  d=ten<l«„t  "P"",  ?  ^'"  »;!'  if,  1,,  a,  .he  time 

„„d  mulberry  tree.  ,.  a  -P^    "^Te  J.ose  o£  *;  de£e„d»„.. 

|;::;*e  su.  o.  ten  ^^^--^^^Tt  t^^Z 

rr'  ;ar::r^.ch"  -.iderr.  ;o™.e^d  .o  aenve,. 

a,„ve,y  of  he  .  ec     .  ^__  ^.^  ^^^^_  ^^  ,„„„„j  „. 

on  ''«"»»''•  7' '""^ J, h^  defense  is  .h»t  the  conmet  w», 
',:1hriroran-m.:L'  i..a„d.  and  fherefce  void  by  .he 

B,v.ed  S.a.„.es   *»P-«2t:t' hTsbeen  argued,  .ha.  .ree. 
In   support  of  'l".""^"    •  ,^i„  ,0  the  realty,  anJ 

g...o»ing,  and  ™» -', »  ^^Vwa's  oTthe  sale  of  tree,  roo.c.l 
.ha.  the  contrac.    n     ,^  t,on        ^^^^^^^^^  ^^  ^^^  ^,^^  ^^ 

and  growmg  m  the  so  .  contended,  that  the 

sale.     On   •»«  P/""  ,f  ^^  "  j   ,„,   „,e  and  transplantation, 
trees  contracted  for  we.e    ra.sed   lor  ^^  ^^  ^ 

""^-  ""'"dcuTr:'  r::;h:Ve';ne::.t.e,  bn.  ».  .»  be 
rX^dr^rsonal  Chattel     ™^^^^^^^^^^^^ 
„„d  considered  in  Mdler  v.  Bake  ,  .  Mc  ■     7,  ^^^     ^^^^^^^ 

aeem  it  necessary  to  -f"-'^;' ;'  ;^ J   ,7,,.  („,,h  in  .he  de,  - 
case.     We  do  "=7-;'^;  *:,'^r:  contract  of  sale    cen.n.,. 

laration  and  P™'"'  •;",;'"  ™,„, ,  for  the  delivery  was  post- 
dated a.  the  „me  o    the  at  ee     ^  ^^^  ^^^  ^^^^^  ,^ 

poned  to  a  future  ..me,  a"  '  "«  ,j.,„  ^^oukl 

complete  the  contract  on  h,     P»"  '^^^^       J  ,|,^  „;,,„,,., 
be  ready  and  w"""S  ■-omp  'te  *«  P  ---^  „  "  i„,,. 

price.  Saurs bury  v.  ";"'«;'•  J,^  ,„j  considering  the  agree 
:;::rir«drdi:d:y,':o  property    in   the    trees   vested 


tOPEllTY. 


nondelivery. 


WIKTMAKSII    V.   WALKKR. 


725 


s,  1840. 

01  agreement, 
tiff  two  thoii- 
les,  at  the  time 
the  defendant, 

the  defendant 
It  of  the  price 
e  price  on  the 
ised  to  deliver 
;  afterward  re- 
e  contract  was 
re  void  by  the 

fued,  that  trees 
the  realty,  and 
of  trees  rooted 
he  time  of   the 
tended,  that  the 
transplantation, 
in  the  soil  of  a 
»,  but  are  to  be 
n  was  discussed 
and   we  do  not 
;    to   the  present 
forth  in  the  dec- 
of  sale   ccnsuni- 
elivery  was  post- 
as  not   bound  to 

2  plaintiff  should 
of  the  stipulated 
jlsb.  347.  Inde- 
dering  the  agrec- 

the    trees    vested 


thereby  in  the  plaintiff.  The  delivery  of  them  and  the  pay- 
ment of  the  price  were  to  be  simultaneous  acts.  The  plaintiff 
can  not  maintain  an  action  for  the  nondelivery,  withou  proving 
that  he  offered  and  was  ready  to  complete  the  payment  '  (he 
price ;  nor  could  the  defendant  maintain  an  action  for  the 
price  without  proving  that  he  was  ready,  and  offered,  to  de- 
liver the  trees.  According  to  the  true  construction  of  the  con- 
tract, as  we  understand  it,  the  defendant  undertook  to  sell  the 
trees  at  a  stipulated  price,  to  sever  them  from  the  soil  or  to 
permit  the  plaintiff  to  sever  them,  and  to  deliver  them  to  him 
on  demand;  he  at  the  same  time  paying  the  defendant  the  resi- 
due of  the  price.  And  it  is  immaterial  whether  the  severance 
was  to  be  mad'  by  the  plaintiff  or  the  defendant.  For  a 
license  foi  thi  plaintiff  to  enter  and  remove  the  trees  would 
pass  no  interest  in  the  land,  and  would,  without  writing,  be 
valid,  notwithstanding  the  st-.tuts  of  frauds. 

This  sub'»ct  was  fu'Iv  onsidered  in  the  case  of  Taylor  v. 
Waters,  7  Taunt.  374,  2  i£ng.  Com.  Law;  and  it  was  held 
that  a  beneficial  license,  to  be  exercised  upon  land,  may  be 
granted  without  deed,  and  without  writing;  and  that  such  a 
license,  granted  ^  '•  .  valuable  consideration,  and  acted  upon, 
can  not  be  count  mandod.  The  subject  has  also  been  ably  and 
elaborately  discusstu  by  Chief  Justice  Savage,  in  the  case  of 
Mum^ford  v.  Whitney,  15  Wend.  3S0,  in  which  all  the  authori- 
ties are  reviewed  ;  and  we  concur  in  the  doctrine  as  therein 
laid  down,  namely,  that  a  permanent  interest  in  land  can  be 
transferred  only  by  writing,  but  that  a  license  to  enter  upon 
the  land  of  another  and  do  a  particular  act  or  a  series  of  acts, 
without  transferring  any  interest  in  the  land,  is  valid,  though 
not  in  writing.  And  such  is  the  license  on  which  the  plaintiff 
relies  in  the  present  case. 

Chancellor  Kent,  in  his  Commentaries  [vol.  Ill,  p.  452, 
^  Ed.],  very  justly  remarks  that  "the  distinction  between  a 
l)rivilege  or  easement  carrying  an  interest  in  the  land,  and  re- 
quirmg  a  writing,  within  the  statute  of  frauds,  to  support  it, 
ind  a  license  which  may  be  by  parol,  is  quite  subtile,  and  it 
becomes  difficult,  in  some  of  the  cases,  to  discern  a  substantial 
iifferenc.e  between  them,"  But  no  such  difficulty  occurs  in 
lie  present  case.  The  plaintiff  claims  no  right  to  enter  on  the 
..efendant'*  land  by  virtue  of  the  license.     It  is  admitted  that 


hm 


726      MODES  OF  OBTAINING  TITLE  TO  PERSONAL  PROPKRTy. 

he  had  a  legal  right  to  revoke  his  license.  But  if  he  exercised 
his  Ic-al  right  in  violation  of  his  agreement,  to  the  plain  iff  s 
prejudice,  he  is  responsible  in  damages.  We  think  it,  there- 
for.-,  clear  that  giving  to  the  contract  the  construction  n  ready 
stated,  the  plaintiff  is  entitled  to  recover.  If,  for  a  valuable 
consideration,  the  defendant  contracted  to  sell  the  tvees  and  to 
deliver  them  at  a  future  time,,  he  was  bound  to  sever  them 
from  the  soil  himself,  or  to  permit  the  plaintiff  to  do  .t,  and 
if  h.  refused  to  comply  with  his  agreement,  he    is  responsible 

in  di'magcs.  ,  ,.  , 

Judgment  on  the  verdict. 

CoNSU.T-Lester  v.  East,  49  Ind.  588,  Boutell  v  Warne.  62  Mo.  35o; 
Dinglev  V.  Oier,  1.7  U.  S.  503;  Hawley  v.  Keeler,  53  N-  Y.  IH,  P^^rker 
V.  Peu.'t,  43  >^-  J-  (L.)  51^- 


§124.    Same-Replevin,  when  title  has  passed. 
SCUDDER  V.  WORSTER. 

[II  Cush.  573.] 
Supreme  Judicial  Court  of  Massachusetts,  jSjJ. 

Dewey   J  —This  case  is  submitted  upon   an  agreed  state- 
,T,ent'  of  Jacts,   upon  which  the  court  are  to  enter  judgment 
The  first  question  presented,  that   of   proper   pleadings    and 
specification  of  defense,  would  hpve  been  more  properly  raised, 
had  the  case  taken  the  ordinary  course  of  a  trial  by  jury      By 
making  a  statement  of  facts,  and  asking  the  judgment  of  th 
Tourt  fhereon,  the  parties  are   understood  to  have  waived  all 
questions  as  to  the  formal  pleadings,  unless  those  q-st.ons  are 
I  direct  terms  reserved      For  obvious  reasons    this  ought  to 
be  so,  as  the   opportunities  for  amendments  of  the  pleadings 
would  be  much  greater,  and  they  could  be   more  conveniently 
Tllowed   in  the  earlier  stages  of  the  case.     The  precise  objec- 
ti^n  t'ken  by  the  plaintiff  as  to  this  matter  is,  that  the  defend- 
I'lby    .leading' the    general    issue   without    a    specification 

dleging    he  property  in  themselves  in  the  articles  replevied 

admit  le  property  in  these  articles  to  be  in  the  plaintiff,  and 

deny  only  the  taking  of  the  same. 


n^ 


ROI'KRTV. 

he  exercised 
he  plaintiff's 
ink  it,  tlierc- 
iction  n'.ready 
31-  a  valualjle 
:  tvees  and  to 
to  sever  them 
CO  do  it,  and 
is  responsible 

an  the  verdict. 

me,  62  Mo.  350; 
.  Y.  1 14  J  Parker 


)ed. 


SCUDDER   V.  WORSTER. 


727 


its,  iSsJ. 

1  agreed  state- 
nter  judgment, 
pleadings    and 
properly  raised, 
1  by  jury.     By 
dgment  of   this 
lave  waived  all 
se  questions  are 
IS,  this  ought  to 
)f  the  pleadings 
ire  conveniently 
le  precise  objec- 
;hat  the  defend- 
a    specification 
tides  replevied, 
:he  plaintiff,  and 


If  this  were  so,  yet  in  a  case  when  the  right  of  property  was 
in  fact  the  real  matter   in    controversy,  and  the   defendant  had 
through  some  misapprehension  omitted  to  set  forth  his  claim  of 
right  of  property,  an  amendment  ought  to  be  allowed  to  that 
effect,  upon  proper  terms,  if  on  trial  before  a  jury,  or  the  facts 
discharged  and  the  case  sent  to  trial,  if  the  case  were  submitted 
to  the  court  upon  an  agreed  statement  of  facts,  if  it  were  nec- 
essary to   secure  the  defendant  a  hearing  upon  the  merits  of 
the  case.     But  in   the   present  case  we  think  the  right  of  the 
defendants  to  assert  their  property  in  the  articles  replevied   is 
not  concluded  by  the  form  of  the  pleadings:  Jirst,  for  the  rea- 
son already  assigned,  that  the  parties  have  made  a  case  upon  a 
statement  of  facts,  and  thus  waived  the  objection  as  to  the  form 
of  the  pleadings;  and,  secondly,  because  under  our  statute  of 
1S36,  chapter  273,  r.bolishing  special   pleading,  and   allowing 
no  other  plea  than  the  general  issue,  that  was  properly  pleaded, 
and  no  call  having  been  made  for  any  specification  of  defense, 
and  no  objection  taken  to  its  omission,  until  the  argument  was 
heard  here  upon  the  statement  of  facts,  it  was  too  late  to  raise 
the   point.     Miller   v.    Sleeper,  4    Cush.    369.     Nor  can    the 
plaintiff  aid  his  case  by  reference  to  his  writ  commanding  the 
officer  to  replevy  one  hundred  and  fifty  barrels  of  pork,  "the 
property  of  the  plaintiff,"  and  the'  return  indorsed  thereon  by 
the  officer  that  "he  had  replevied   the  within-mentioned  prop- 
erty."    An  officer's  return,  however  conclusive  as  to  the  serv- 
ice of  process,  settles  nothing  of  the  right  of  property  of  the 
parties.     This  case  must  be  decided  upon  the  result  we  shall 
come  to  upon  the  principal  question  so  fully  argued,  whether 
the  property  in  the  one  hundred  and  fifty  barrels  of  pork  ever 
passed  from  the  vendors  by  a  sale  so  far  complete  as  to  author- 
ize the  plaintiff  to  maintain  his  action  of  replevin  for  the  same. 
It  appears  from  the  facts  stated,  that  on  February  10,  1S50, 
a  contract  was  made  by  the  defendants  with  Secomh,  Taylor  & 
Company,  to  sell  them  two  hundred  and  fifty  barrels  of   pork 
bninded  "Worcester     '.d  Hart;"  that  a  bill  of  sale  of  the  pork 
was  made  and  delivered  to  t'  -m,  and  they  gave  the  defendants 
their  negotiable  promissory  notes  of  hand  therefor,  payable  in  six 
months ;  that  it  was  further  agreed  that  the  pork  should  remain 
in  defendants'  cellar  on  storage,  at  the  risk  and  expense  of  the 
purchasers ;  that  Secomb,  Taylor  &  Company,  on  the  thirteenth 


\ 


728       MODES  OF  OnXAINING  TITLE  TO  PERSONAL  PKOrERTY. 

day  of  May,  1S50,  sold  one  hundred  barrels  of  the  pork  to  one 
Lang,  who  received  the  same  of  the  defendants  upon  the  order 
of  Secomb,  Taylor   &   Company;  that  on  the  twenty-seventh 
of  May,  1S50,  Secomb,  Taylor  &  Company   sold   the  plnintiff 
one  hundred  and  fifty  barrels,  with  an  order  on  the  defendants 
therefor.     The  next  day  the  plaintiff  gave  notice  to  the  defend- 
ants of  the  purchase,  and  requested  them  to  hold  the  same  on 
storage  for  him,  to  which  the  defendants  assented.     On    the 
twenty-fifth    of   June,    Secomb,    Taylor   &    Company  became 
insolvent,  and  on  the  same  day  the  plaintiff  called  upon  the 
defendants  for  the  purpose  of  recovering  the  one  hundred  and 
fifty  barrels  of  pork,  but  the  defendants  refuse  to  allow  him  to 
do  so.     On  the  next  day  a  more  formal  demand,  accompanied 
by  an  offer  to  pay  storage,  was  made,  which  being  refused  by 
the  defendants,  an   action  of  replevin  was  instituted,  and  one 
hundred  and  fifty  barrels  of  pork,  the  same  now  in  controversy, 
were  taken  and  removed  from  said  cellar  and  delivered  to  the 

plaintiff. 

The  further  fact  is  stated  in  the  case,  and  it  is  this  which 
raises  the  question  of  property  in  the  plaintiff,  that  the  pork 
bargained  and  sold  in  the  manner  above  stated  was  in  the  cellar 
of  the  defendants,  and  a  parcel  of  a  larger  quantity  of  the  same 
brand,  and  also  with  some  of  a  different  brand,   and  so  con- 
tinued parcel  of  a  larger  quantity  of  similar  brand,  up  to  the 
time  of  the  suing  out  of  the  plaintiff's  writ  of  replevin,  though 
this  fact  was  not  at  the  time  of  the  sale  stated  to  the  purchasers, 
or  to  the  plaintiff  when   he  purchased  of  Secomb,  Taylor  & 
Company.     Had   these  two   hundred  and  fifty  barrels  of  pork 
been  a  separate  parcel,  or  had  the  parties  designated  them  by 
any  visible  mark,  distinguishing  them  from  the  residue  of  the 
vendor's  stock  of  pork,  the  sale  would  clearly  have  been  an 
absolute  one,"  and  the  property  would  at  once  have  passed  to 
the  purchaser.     There  was  nothing  required  to  have  been  done 
but  this  separation  from  the  general  mass  of  like  kind  to  have 
placed  the  sale  beyond  all  question  or  doubt  as  to  its  validity. 
The  cases  cited  by  the  plaintiff's  counsel  fully  establish  the 
position,  that  what  was  done  in  this   case   would  have  trans- 
ferred the  property  in  the  pork,  if  the  sale  had  been  of  all  the 
pork  in  the  cellar,  or  of  any  entire  parcel   sepurated  from  the 
residue,    or   if  the  two  hundred    and  fifty  barrels    had   some 


OPERTY. 

pork  to  one 
on  the  order 
enty-seventh 
the  plnintiff 
;  defendants 
)  the  defend - 
the  same  on 
2d.     On    the 
jany  became 
ed  upon   the 
hundred  and 
illow  him  to 
accompanied 
g  refused  by 
ited,  and  one 
I  controversy, 
ivered  to  the 

is  this  which 
that  the  pork 
is  in  the  cellar 
:y  of  the  same 
,   and  so  con- 
nd,  up  to  the 
Dlevin,  though 
he  purchasers, 
mb,  Taylor  & 
jarrels  of  pork 
lated  them  by 
residue  of  the 
have  been  an 
lave  passed  to 
ave  been  done 
:  kind  to  have 
to  its  validity. 
y  establish  the 
uld  have  trans- 
leen  of  all  the 
-ated  from  the 
rels   had   some 


SCUDDER    V.  WOUSTEU. 


729 


descriptive  mark  distinguishing  them  from  the  other  barrels  not 
sold.     The  difficulty  in  the  case  is,  in  maintaining  that  m  the 
absence  of  each  and  all  these  circumstances,  distinguishing  the 
articles  sold,  the  particular  barrels  of  pork  selected  by  the  officer 
from  the  larger  mass  when   he   served  this  process,  were  the 
property  of  the  plaintiff,  or  had  ever  passed  to  him.     In  addi- 
tion,  however,  to  the  numerous  cases  cited  to  establish  the  gen- 
eral principles  contended  for  on  the  part  of  the  plaintiff,  and 
which  would  have  been  decisive,  if  it  had  been  a  sale  of  all  the 
pork  in  the   cellar,  or  a  particular  parcel,   or  certain   barrels 
having  descriptive  marks  which  would  enable  the  vendee  to 
separate  his  own  from  the   residue,  were   cited  several  more 
immediately  bearing  upon  the  present  case,  and  were  properly 
not  separable,  has  been  held  to  pass  to  the  vendee.     The  lead- 
ing  case  relied  upon  is  that  of  Pleasants  v.  Pendleton,  6  Rand. 
475.     This  was  an  action  by  the  vendor  to  recover  the  price  of 
one  hundred  and  nineteen  barrels  of  flour  sold  to  the  defendant. 
No  other  objection  existed  to  the  validity  of  the  sale,  except 
that  the  one  hundred  and  nineteen  barrels  were  a  parcel  of  one 
hundred  and  twenty-three  barrels,   all   of  similar  kind,  in  the 
same  warehouse.     There  were  certain  brands  or  marks  on  the 
entire  one  hundred  and  twenty-three  barrels.     The  f^our  was 
destroyed  by  fire  vvhil?  on  storage,  and  the  vendee  refused  to 
pay  for  the  one  hundred  and  nineteen,  upon   the  ground  that 
the  sile  was  not  perfected  for  want  of  separation  from  the  one 
bundled  and  twenty-three  barrels.     The   court  refused  to  sus- 
tain  the  defense,   and  gave   judgment   for  the    plaintiff.      In 
reference  to  this  case  Grimke,  J.,  in  Woods  v.  McGee,  7  Ohio, 
127,  says:    "It  is  impossible  to  divest  ourselves  of  the  impres- 
sion that  the  small  difference  between  the  aggregate  mass  and 
the  quantity  sold,  the  former  being  one  hundred   and  twenty- 
three  barrels   and  the  latter  one  hundred  and  nineteen,  may 
liave   influenced  the.  decision.     It  was  4  hard  case,  and  hard 
cases  make  shipwreck  of  principles." 

Jackson  V.  Anderson.  4  Taunt.  24,  was  an  action  of  trover 
to  recover  for  the  conversion  of  one  thousand,  nine  hundred 
and  sixty-nine  Spanish  dollars.  It  appeared  that  the  amount 
had  been  transmitted  to  a  consignee  for  the  use  of  the  plaintiff, 
but  they  were  in  a  parcel  of  $4,918,  all  of  which  came  into  the 
hands  of  the  defendant.     Among  other  points  raised  at  the 


730       MODES  OF  OBTAINING  TITKE  TO  PERSONAL  rHOPEUTY. 

argument  was  this,  that  there  was  nothing  to  distinguish  the 
$1,969  from  the  entire  mass;  that  there  had  liecn  no  separa- 
tion, and  of  course  the  plaintiff  had  no  property  in  any  partic- 
uhu-  portion  of  the  money.  The  point,  it  s-eems,  was  not  made 
at  the  trial  before  the  jury,  but  suggested  by  the  court  during 
the  argument  before  the  full  court,  and  this  is  stated  by  the 
reporter;  the  court  interrupted  the  counsel,  and  intimated  a 
strong  doubt,  as  there  was  nothing  to  distinguish  the  $1,969 
from  the  remaining  contents  of  the  barrel,  whether  the  action 
could  lie.  At  a  future  day  the  court  gave  judgment  for  the 
plaintiff.  The  objection  was  overruled  upon  the  ground  that 
the  defendant  had  disposed  of  all  the  dollars,  consequently  he 
had  disposed  of  those  belonging  to  the  plaintiff. 

The  case  of  Gardner  v.  Dutch,  9  Mass.    427,    is   apparently 
the  strongest  case  in  favor  of  the  plaintiff.     The  case    was    re- 
plevin  against  an  officer  who  had  attached  goods  as  the  property 
of  Wellman  and  Ropes.     The  plaintiff  had  seventy-six  bags  of 
coffee,  to  which  he  became  entitled  as  owner,  upon  an  adjust- 
ment of  accounts  of  a  voyage  he   had    performed  for  Wellman 
and  Ropes,  but  the  bags  belonging  to  the  plaintiff  were    in    no 
way  distinguished  by  marks,  or  separated  from  the  other  coffee 
of  Wellman  and  Ropes.     The  plaintiff  on  his  arrival  at  Salem, 
from  his  voyage,  delivering  the  entire  coffee   to  W^ellman   and 
Ropes,  taking  their  receipt  "for  seventy-six  bags  of  coffee,   be- 
ing his  adventure  on  board    schooner   Liberty,   and   which  we 
hold  subject  to  his  order  at  any  time  he  may  please  to  call    for 
the  same."     The  point  taken  in  the  case  was   that  the  plaintiff 
had  not  the  sole  property,  but  only  an  undivided   interest,    and 
so   could   not  maintain    replevin.     The  court  ruled    that   the 
plaintiff  was  not  a  tenant  in  common,  bu^  might  have  taken  the 
number  of  bags  to  which  he  was  entitled,  at  his  own    selection, 
and  might  maintain  his  a^Mon. 

This  case,  on  the  face  of  it,  seems  to  go  far  to  recognize  the 
right  of  one  having  a  definite  number  of  barrels  of  any  given 
articles  mingled  in  a  common  mass,  to  select  and  take,  to  the 
number  he  is  entitled,  although  no  previous  separation  had 
taken  place.  It  is,  however,  to  be  borne  in  mind  in  reference 
to  this  case,  that  it  did  not  arise  between  vendor  and  vendee. 
The  interest  in  the  seventy-six  bags  of  coffee  did  not  originate 
by  purchase   from  Wellman    and   Ropes.     They  became    the 


^■M 


lOPEUTY. 


SCUDDEK    V.   WOUSTEK. 


731 


istinguish  the 
n  no  separa- 
n  any  partic- 
was  not  made 
I  court  (hiring 
stated  by  the 
1  intimated  a 
h  the  $1,969 
ler  the  action 
ment  for  the 
;  ground  that 
isequently  he 

is  apparently 
case  was  re- 
s  the  property 
ty-six  bags  of 
on  an  adjust- 

for  Wellmau 
'i  were  in  no 
he  other  coffee 
ival  at  Salem, 
IVellman  and 
of  coffee,  be- 
nd which  we 
se  to  call  for 
at  the  plaintiff 

interest,  and 
uled  that  the 
lave  taken  the 
>wn    selection, 

recognize  the 
of  any  given 
\  take,  to  the 
separation  had 
i  in  reference 
:  and  vendee, 
not  originate 
ly  became    the 


specific  property  of  the  plaintiff  in  that  action,  on  an  adjust- 
ment of  an  adventure,  the  whole  proceeds  of  which  were  in  his 
h.inds,  and  separated  with  the  possession,  only  when  he  took 
tlieir  accountable  receipts  for  seventy-six  bags,  held  bv  them  on 
Ills  account.  It  did  not  raise  the  questioUi  here  so  fully  dis- 
cussed, as  to  what  is  necessary  to  constitute  a  delivery,  and  how 
far  it  was  necessary  to  have  a  separation  from  amass  of  articles, 
to  constitute  a  transfer  of  title.  Perhaps  the  circumstances 
may  well  have  warranted  that  decision,  but  we  are  not  satisfied 
that  the  doctrine  of  it  can  be  properly  applied  to  a  case  where 
tlu-  party  asserts  his  title,  claiming  only  as  a  purchaser  of  a 
specific  number  of  barrels,  there  having  been  no  possession  on 
his  part,  and  no  separation  of  the  same  from  a  larger  mass  of 
articles  similar  in  kind,  and  no  descriptive  marks  to  designate 
them. 

On  the  other  hand,  in  support  of  the  position  that  this  sale 
was  never  perfected,  for  want  of  such  separation  of  the  particu- 
lar barrels  on  account  of  the  plaintiff,  or  some  designation  lof 
tiiem  from  others  of  like  kind,  there  will  be  found  a  strong^ 
weight  of  authority,  and  to  some  of  the  most  prominent  cases  I 
will  briefly  refer.  Thus,  in  the  case  of  Hutchinson  v.  Hunter, 
7  Barr,  140,  which  was  an  action  of  assumpsit  to  recover  pay- 
ment for  one  hundred  barrels  of  molasses  sold  to  the  defendant, 
the  same  being  parcel  of  one  hundred  and  twenty-five  barrels, 
and  the  whole  destroyed  by  fire  while  on  storage,  and  before 
separation  or  designation  of  any  particular  barrels,  it  was  held 
that  the  plaintiff  could  not  recover,  the  sale  never  having  been 
consummated.  Rogers,  J.,  says:  »'The fundamental  rule  which 
applies  to  this  case  is,  that  the  parties  must  be  agreed  as  to  the 
specific  goods  on  which  the  contract  is  to  attach,  before  there 
can  be  a  bargain  and  sale.  The  goods  must  b&  ascertained, 
designated,  and  separated  from  the  stock  or  quantity  with  which 
they  are  mixed  before  the  property  can'pass."  He  considers 
the  case  of  Pleasants  v.  Pendleton,  6  Rand.  475,  as  decided  on 
erroneous  principles.  The  case  of  Hutchinson  v.  Hunter  pre- 
sented a  case  of  a  subcontract  or  sale  like  the  present,  and  it 
was  urged  that  this  differed  the  case  from  what  it  might  other- 
wise have  been,  as  respects  the  original  vendor.  But  the  court 
held  that  this  did  not  vary  the  case  in  the  matter  of  the  necessity 
of  a  separation  of  the  article  sold  from    the  greater  mass.     So 


732       MODKS  OF  OnTAlNlNG  TITI.K  TO  nCUSONAL  IMlOrKUTY. 

in  Golden  v.OKden,r5Penn.  St.    R.  [3  Havns]    5^^^-    vvhcre 
a  contract  was  made  for  the  sale  of  two  thousand  pieces  of  wal 
paper,  the  purchaser  {jiving  his  notes  therefor  to  the  vendor,  and 
taking  away  with  him   one  thousand  pieces,  and  it  was  a-reed 
that  the  other  one  thousand  pieces  should  remani  unt.l  called 
for  by   the  purchaser,  upon  a  question  of   property    m  the    re- 
mainh.g  one  thousand   pieces   between    the    assignees     of   the 
vendor  and  the  purchaser,  it  was  held  that  these    one   thousand 
pieces  not  havin<,^  been  selected    by  the  buyer,  or    separated  or 
set  apart  for  him,  l)ut  remaining  mingled  with  other    paper   o 
same  description,  did  not  become  the  property    of  the    alleged 
buyer,  as  against  an  assignment  for  the  be.iefit  of    the  creditors 
of  the  vendor.     The  principle  advanced  in  that  case    seems    to 
be  the  sound  one:  "That  the  property  can  not  pass  untd    there 
be  a  specific  identification  in  some  way  of  the  particular  goods 
which  the  party  bargaiu.,  for.   The  law  knows  no  such  thmg  as 
a  floating  right  of  property,  which  may  attach    .tself  either    to 
one  parcel  or  the  other,  as  may  be  found  convenient  afterward. 
The  case  of  Waldo  v.  Belcher,  11  Iredell,  609,  was  the  case  of 
a  sale  of  corn  by  a  vendor,  having   in  his  store   three  thousand 
and  one  hundred  bushels  of  corn,  and  selling  two  thousand  and 
eight  hundred  bushels  of  the  same,  but  the   two   thousand    and 
eitht  hundred  bushels  were    never   separated    from   the    three 
thousand  and  one  hundred,  and  the  whole  was,  after  the    sale, 
destroyed  by  fire,  and  it  was  held  that  the  property  in  the    two 
thousand  and  eight  hundred  bushels  did  not  pass  to  the  vendee 
though  it  would  have  been  otherwise  had  it  been  a   sale  of    all 
the  corn  in  the  crib.     The  ground   of   the  decision    was,   that 
there  had  been  no  separation,  that  it  could  not   be   ascertained 
which  corn  was  the    property  of   the  vendee  until  it  was  sepa- 
rated    The  purchaser  could  not  bring  detinue ,  because  he  could 
not  describe  the  particular  thing.     This  would  be  equally  so  as 
to  replevin.     The  case  of  Merrill  v.    Hunnewell,  13  Pick.  213, 
bears  strongly  upon  the  question  before  us.     It  was   a    sale   ot 
nine  arches  of  brick  in  a  kiln  containing  a  larger   number,    but 
not  separated  from  the  residue  or  specifically  designated.  After 
the  vendor  had,  by  other  sales,  reduced  the    quantity  on    hand 
to  less  than  nine  arches,  upon  a  question  of    property  between 
the  vendee  and  an  attaching  creditor  of  the  vendor,  it  was  held 
that  the  purchaser  took  no  property  in  the  bricks,  the  sale  being 


I'UOI'KUTY 

i]  52S,  where 
I  pieces  of  wall 
the  vendor,  and 

it  was  agreed 
lin  until  called 
:rty  in  the  re- 
ignees     of   the 

one  thousand 
jr  separated  or 
jther  paper  o£ 
of  the  alleged 
jf  the  creditors 
case  seems  to 
)ass  until  there 
particular  goods 
10  such  thing  as 
itself  either  to 
Mit  afterward." 
was  the  case  of 

three  thousand 
,'o  thousand  and 
}   thousand    and 
from   the    three 
,  after  the    sale, 
)erty  in  the    two 
ss  to  the  vendee, 
en  a   sale  of    all 
:ision    was,   that 
t   be   ascertained 
ntil  it  was  sepa- 
because  he  could 
1  be  equally  so  as 
;11,  13  Pick.  313, 
t  was   a    sale   of 
rer   number,    but 
lesignated.  After 
[uantity  on    hand 
)roperty  between 
indor,  it  was  held 
ks,  the  sale  being 


SCUDDEU    V.  WOHSTER. 


733 


nf  partof  a  large  mass,  not  delivered  nor  specifically  designated. 

Bliickburn,  in  his  treatise  on  Sales,  page  20,  presents  the  law 
on  this  subject  thus:  "Until  the  parties  are  agreed  as  to  the 
specific  identical  goods,  the  contract  can  be  no  more  than  a  con- 
tract to  supply  goods  answering  a  particular  description,  and 
since  the  vendor  would  fulfill  his  part  of  the  contract  by  fur- 
nishing any  parcel  of  goods  answering  that  description,  it  is 
ilear  there  can  be  no  intention  to  transfer  the  property  in  any 
particular  lot  of  goods  more  than  another,  until  it  is  ascertained 
which  are  the  very  goods  sold." 

Examining  the  facts  in  the  case  before  us,  and  applying  the 
principles  of  the  cases  last  cited,  and  the  approved  elementary 
doctrine  as  to  what  is  necessary  to  constitute  a  sale  of  property 
not  separated  from  the  mass  of  like  kind,  or  designated  by  any 
descriptive  marks,  the  court  are  clearly  of  opinion  that  the 
property  in  the  specified  one  hundred  and  fifty  barrels  of  pork 
taken  by  the  plaintiff,  under  his  writ  of  replevin,  had  never 
passed  from  the  vendors,  and  therefore  this  action  can  not  be 
maintained. 

In  the  argument  of  this  case  on  the  part  of  the  plaintiff,  the 
case  was  put  as  a  case  of  intermixture  of  goods,  and  it  was 
argued  that  such  intermixture  having  taken  place,  the  plaintiff 
might,  for  that  cause,  hold  the  property  as  his.  But,  in  fact, 
there  was  no  such  case  of  intermixture.  The  entire  property 
was  always  in  the  defendants. 

It  was  also  urged  that  the  defendants  were  estopped  to  deny 
that  the  one  hundred  and  fifty  barrels  of  pork  were  the  property 
of  the  plaintiff,  having  given  a  bill  of  sale  of  the  same,  and 
under  the  circumstances  stated  in  the  statement  of  facts.  Had 
this  been  an  action  to  recover  damages  for  the  value  of  one 
hundred  and  fifty  barrels  of  pork,  this  position  might  be  ten- 
able, and  the  defendants  estopped  to  deny  the  property  of  the 
plaintiff  in  such  one  hundred  and  fifty  barrels.  This  would  be 
so  if  an  action  hai^  been  brought  against  the  defendants  as 
bailees  of  one  hundred  and  fifty  barrels  of  pork,  and  for  not  de- 
livering the  same. 

But  the  distinction  between  the  case  of  an  action  for  dam- 
ages for  not  delivering  one  hundred  and  fifty  barrels,  and  that 
of  replevin,  commanding  the  oflScer  to  take  from  the  possension 
of  the  defendants  one  hundred  and   fifty  barrels,    and    deliver 


734 


MODKS  OK  onTAIMNO  TITI.K    I'O  l>F.riSONAI,  I'nOl'EUTY. 


tliL'  same  lo  plaintiff  as  his  property,  is  an  ol-,  ions  one.  To 
.sustain  tlic  former  it  is  only  necessary  to  show  a  rij^lit  to  one 
hundred  and  fifty  barrels  ^^'cnerally,  and  not  any  specillc  one 
liundred  and  fifty  l)arrcls ;  hut  to  maintain  replevin,  the  plaintiff 
must  he  the  owner  of  some  specitic  one  hundred  and  llfty  bar- 
rels. If  bought,  they  must  be  specifically  set  apart,  or  designat- 
ed in  some  way  as  his,  and  not  intermingled  with  a  larger 
mass  of  like  kind  owned  by  the  vendor. 

Judgment  for  the  defendants. 

Covsri.T— Kennedy  V.  VVhittieil,  4    Pick.  46C);    Piilibrook   v.    Eaton, 
134  Mass.  39S;  Kooii  V.  Brinkerhoft,  39  llun,  130. 


§  125.    Same— The  action  for  breach  of  warranty. 

LYON  V.  BERTRAM. 

[20  How.  149.] 
Supreme  Court  of  the  United  States,  fSj^. 

Mr.  Justice  Cami'uki.l. — This  suit  was  commenced  by  the 
defendants  in  error  to  recover  the  price  for  a  cargo  of  flour 
bargained  and  sold  to  the  plaintiff  in  error  in  the  city  of  San 
Francisco.  The  judgment  of  the  circuit  court  was  rendered 
upon  a  special  verdict  in  favor  of  the  plaintiffs  in  that  court. 
The  verdict  finds  that  on  the  thirteenth  of  January,  1S53,  th- 
plaintiffs  and  Flint,  Peahody  &  Company  were  jointly  owners 
of  a  cargo  of  flour,  consisting  of  two  thousand  barrels,  branded, 
and  which  were  in  fact  Gallego,  then  being  on  the  barque  Ork, 
lying  at  a  public  wharf  in  San  Francisco  and  composing  its 
entire  cargo  of  flour,  which  inspected  one  thousand,  seven 
hundred  and  seventy-one  barrels  superfine,  and  two  hundred 
and  twenty-nine  bad. 

The  firm  of  Flint,  Peabody  &  Company  as  agents  and  part 
owners  on  the  day  aforesaid,  concluded  the  following  agree- 
ment with  the  defendant: 

"San  Francisco,  January  13,  1853. 

"Sold  this  day  to  Joseph  H.  Lyon,  Esq.,  a  cargo  of  Haxall 
flour,  now  on  board  the  barque  Ork,  lying  in  this  harbor,  being 
about  two  thousand  barrels,  on  the  following  terms  and  condi- 


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LYOX    V.  DERTIIAM. 


735 


lions,  viz.:  Joseph  II.  Lyon,  Esq.,  agrees  to  pay  Messrs. 
llint,  Peabody  &  Company  thirty  doUars  per  barrel  for  such 
as  shall  inspect  superfine,  and  twenty-seven  dollars  per  barrel 
for  such  as  shall  inspect  bad  ;  payment  to  be  made  as  it  may 
]<v  delivered,  and  to  be  received  and  paid  for  on  or  before  the 
expiration  of  three  weeks  from  date. 

"If  Messrs.  Flint,  Peabody  &  Company  elect,  they  can  land 
and  store  the  flour  at  the  expiration  of  one  ^eek,  or  so  much 
;is  may  remain  on  board  at  that  time.  Mr.  Lyon  paying 
storage  and  drayage  expenses. 

"J.  H.  Lyon, 

"Flint,  Peabody  &  Company." 
On  the  twenty-fifth  of  January,  1S53,  the  defendant  applied 
to  Flint,  Peabody  &  Company  for  fifty  barrels  of  flour,  so  pur- 
chased by  him,  by  a  written  order,  as  follows: 

"San  Francisco,  January  25,  1S53. 
"Messrs.  Flint,  Peabody  &  Company  will  please  deliver  to 
Mr.  William  R.  Gorham,  or  bearer,  fifty  barrels  of  flour,  out 
of  the  lot  purchased  from  the  ship  Ork,  and  oblige 

"J.  H.  Lyon." 
Paying  them  there  for  the  contract  price  amounting   to  the 
sum  of  one  thousand,  five  hundred  dollars   and   received  from 
Flint,  Peabody  &  Company  the  following  order: 

"San  Francisco,  January  25,  1S53. 
"Captain  of  barque    Ork:     Please  deliver    the  bearer  fifty 
barrels  superfine  flour,  and  oblige 

"Flint,  Peabody  &  Co." 
Fifty  barrels  of  Gallego  flour,  inspecting  superfine,  being 
part  of  said  cargo  of  flour  on  board  the  barque  Ork  was 
delivered  from  the  barque  to  William  R.  Gorham,  a  baker,  to 
whom  the  defendant  had  sold  and  transferred  the  delivery  order 
and  the  said  flour.  When  the  order  was  made  for  William  R. 
Gorham,  the  defendant  represented  that  the  flour  was  Ilaxall. 
On  the  twenty-ninth  of  January,  1S53,  the  defendant  sold  to 
Dunne  &  Company  fifty  barrels  of  flour  which  he  represented 
to  be  Ilaxall  and  gave  the  following  order,  bearing  date  on 
that  day. 

"Messrs.  Grey  &  Doane   will  please  deliver  Messrs.  Dunne 
it  Companv  fifty  barrels  Ilaxall  flour  from  Ork. 

"J.H.Lyon." 


I* 


736       MODKS  OF  OBTAIN'ING  TITLE   TO  PERSONAL  PROPERTY. 

The  said  Dunne  &  Company  on  discovering  that  the  flour 
was  not  Ilaxall  but  Gallego  refused  to  take  it  and  so  notified 
the  defendant.  On  the  thirty-first  of  January,  1S53,  the 
defendant  made  further  application  for  one  hundred  barrels  of 
flour,  being  part  of  the  flour  so  purchased  as  aforesaid,  and 
gave  his  check  on  his  bankers  for  the  price  and  re<  eived  the 
following  delivery  order  from  Flint,  Peabody  &  Company, 
bearing  that  date: 

"Captain  Hutchings,  barque  Ork:  Please  deliver  to  J.  H. 
Lyon,  or  to  the  order  of  Grey  &  Doane,  one  hundred  barrels 
superfine  flour,  and  oblige,  etc." 

The  check  was  not  paid  on  presentation.  Upon  the  refusal 
of  Dunne  &  Company  to  take  the  flour,  the  defendant,  on 
learning  the  fact,  notified  the  plaintiffs  that  he  would  not  take 
the  flour,  countermand  the  payment  of  the  check  he  had  given 
for  the  one  hundred  barrels  last  mentioned. 

On  the  third  of  February,  1853,  the  plaintiffs   informed  the 
defendant  that  they  were  prepared  to  deliver  the  remainder  of 
the   cargo  and  requested    the  defendant   to   receive    it.     And 
subsequently  on  the  same  day  they   addressed  him  a  note,  in 
which  they  advised  him  they  would  sell  the  flour  on  the  fifth  of 
February    at   public    auction   for  his   account,  and  would  hold 
him  responsible  for  the  difference   there   might  be    in   the    net 
proceeds  of  the  proposed  sale   and    the   contract   price  and  for 
charges    and   expenses,  he  (Lyon)  having  declined   to  take  the 
flour  under  the  contract.     All   the    flour   on  the  barque  was  of 
the  brand  known  as   Gallego   and   the    barrels    were   branded 
Gallego  in  printed  characters  from    two   to   two  and   one    half 
inches    in   length   on    both    heads.     In   the   opinion   of   some 
experts  there  existed  no  difference  in  the  quality  or  price  of  the 
flour   of   either   brand  (Haxall   and  Gallego)   each    inspecting 
superfine;    but  in  the    opinion  of   other   experts,  there   was    a 
difference,  some  preferring  the  one  brand  and    some  the  other. 
Subsequently  to  the  s.ile  and  up  to  and  including  the  twenty-, 
eighth    of  January,  1853,  Gallego   and    Ilaxall  flour   had    ad- 
vanced  to  $35  per  barrel  in  San  Francisco ;    and  between    that 
and  the  fifth  of  February  the  price  of  both  declined  to  $iS  per 
barrel.     On    the   fifth    of  February   the    plaintiffs   caused    the 
remainder  of  the  cargo  to   be    sold  at  public   auction  according 
to  their  notice  to  the  defendant   for   his   account  and  at  a  great 


w 


OPERTY. 

at  the  flour 
1  so  notified 
,  1S53,  the 
ed  barrels  of 
foresaid,  and 
re<  eived  the 
!:   Company, 

ver  to  J.  H. 
idled  barrels 

1  the  refusal 
efendant,  on 
ould  not  take 
he  had  given 

informed  the 
remainder  of 
ive  it.  And 
lim  a  note,  in 
jn  the  fifth  of 
id  would  hold 
c    in   the    net 

price  and  for 
;d  to  take  the 
3arque  was  of 
vere  branded 
and  one  half 
lion  of  some 
jr  price  of  the 
ch  inspecting 
I  there  was  a 
3me  the  other, 
ig  the  twenty-. 
Hour   had    ad- 

between  that 
led  to  $iS  per 
fs  caused  the 
:tion  according 

and  at  a  great 


LYON   V.    HEKTIIAM. 


737 


reduction  of  price.  The  verdict  does  not  find  any  fact  to 
impugn  the  fairness  of  this  sale.  Before  this  suit  was  com- 
menced Flint.  Pcabody  &  Company  assigned  their  interest  in 
tills  suit  to  the  pLnintiffs  of  which  the  defendant  had  notice. 

The  verdict  is  silent  in  reference  to  the  negotiations  that 
jircceded  the  contract  and  does  not  inform  us  whether  the 
c:ugo  was;  at  anytime  visible  to  the  defendant;  nor  does  it 
discriminate  with  exactness  the  qualities  of  Ilaxall  and  Gallego 
Hour  or  affirm   that   there    is    any    specific   difference   between 

them. 

It  is  evident  from  the  verdict  that  the  error  in  the  description 
of  the  cargo  did  not  bear  on  the  substance,  or  on  any  sub- 
stantial quality  of  the  substance  of  the  sale.  The  subject  of 
tlie  sale  was  a  cargo  of  flour  of  about  two  thousand  barrels  on 
board  of  a  vessel  lying  at  a  wharf  in  the  city;  of  a  quality  to 
bo  ascertained  by  an  inspection;  and  from  that  inspection  and 
not  from  the  brand,  the  price  was  to  be  ascertained.  The 
brands  Ilaxall  and  Gallego  are  understood  to  ref'^r  to  different 
mills  in  Kichmond,  Virginia,  at  which  flour  is  manufactured. 
The  verdict  sufficiently  determines  that  the  difference  between 
them  in  the  market  at  San  Francisco  is  inappreciable,  at  least 
hy  the  mass  of  purchasers  and  consumers.  The  case  clearly 
does  not  belong  to  that  class  in  which  the  subject-matter  of  the 
contract  v^as  of  a  nature  wholly  different  from  that  concerning 
which  the  parties  to  the  contract  made  their  engagements.  The 
brand  on  the  exterior  of  the  barrels  of  flour  was  certainly  not 
of  the  substance  of  the  contract.  Yuung  v.  Cole,  3  Bing.  N. 
C.  724;    Gompertz  V.  Bartlett,  2    Ell.  &  B.  S49;    19  Vt.  202. 

The  defendant  does  not  resist  the  fulfillment  of  his  agreement 
for  any  fraud,  nor  does  the  verdict  impute  any  mala  fides  to 
the  plaintiffs. 

The  case  rests  upon  these  facts:  There  was  a  sale  of  a  cargo 
of  flour  at  a  price  dcpetideiit  upon  the  fact  whether  the  com- 
ponent parts  inspected  superfine  or  bad,  which  was  described 
as  of  one  brand  but  which  proved  to  be  of  another.  There  was 
no  material  difference  in  the  credit  of  the  brands,  and  the  mar- 
ket price  of  the  flour  was  but  little  affected  by  the  question 
whether  the  brand  was  of  the  one  or  the  other  mill. 

A  portion  of  the  flour   has  been   delivered   to,  and  paid  for, 
"and  consumed  by  the  defendant.       He  made  no  offer  to  return 

47 


mmt 


73S       MOI.KS  <)1-  OIITAININC;   TITLK  TO  PEUSONAI.  PROl'ERTy. 

this  flour.  The  flour  remained  in  the  Ork  from  the  thirteenth 
of  January  till  the  thirty-first  of  January,  subject  to  the  exi- 
L'encies  of  the  contract.  Durin-  that  period  there  was  no  com- 
plaint on  the  part  of  the  defendant.  From  the  twenty.e;ghth 
of  January  till  the  fifth  of  February,  when  the  refusal  to  accept 
the\cmainder  of  the  flour  and  the  sale  of  it  on  account  took 
place,  the  price  of  flour  was  steadily  declining. 

It  may  be  admitted  that  the  description  of  the  flour  as  Haxall 
imported  a  warranty  that  it  was  manufactured  at  mills  which 
used  that  brand,  and  that  the  purchaser  would  have  beeii 
entitled  to  recover  the  amount  of  difference  in  the  value  of  that 
and  an  inferior  brand. 

Powell  V.  Horton,  3  Bing.  N.  C.  668;  Henshaw  v.  Robms, 

9  Mete.  S3. 

But  It  can  not  be  admitted  that  the  pur     aser  was  entitled  to 

abandon  this  contract. 

In  the  note  to  Cutter  v.  Powell,  in  3  Smith's  Lead.  Cases,  i, 
the  annotator  says:      "  It   is   settled   by  Street  v.  Blay,  2  B.  & 
Ad   4<6,  and  Poulton  v.  Lattimore,  9  »•  &  ^-  ^59.  where  an 
article  is  warranted  is  not  complied  with,  the  vendee  has  three 
courses,  anv  one  of  which  he  may  pursue.       i.  He  may  refuse 
to  receive  the  article  at  all.     2.  He  may  receive  it  and  bring  a 
cross-action  for  the  breach  of  the  warranty.     3-  He  may,  with- 
out bringing  a    cross-action,   use   the   breach   of  warranty   in 
induction  of  damages  in  an   acton  brought  by  the  vendor  for 
the  price.     The  annotator  proceeds  to  say  "  that  it  was  once 
thought   and   indeed   laid    down  by   Lord   Eldon  in  Curtis  v 
Hanney,  3  EsP-  «3,  that  he  might  on  discovering  the  ^r^"*'^';^  «j 
warranty  rescind  the  contract,  return  the  chattel,  and  if  he  had 
paid  the  price,   recover  it  back.     This  doctrine,   which   was 
opposed  to  Weston  v.   Downcs,    i   Doug.  23,  is  overruled  by 
Street  v.  Blay,  2  B.  &  Ad.  456,   and  Gompertz  v.   Denton    i 
Cromp    &  M.  207,  and  it  is  clear  that  though  the  noncompli- 
ance with  the  warranty   will  justify  him  in  refusing  to  receive 
the  chattel,  it  will  not  justify  him  in  returning  it,  and  suing  to 
recover  back  the  price." 

The  second  and  third  propositions  of  this  learned  author  are 
indisputable,    and   have  received   the   sanction   of   th.s   court 
Thornton  v.  Winn,    12  Wheat.    .S3,   as  modified  by  Withers 
V   Green,  9  How.  S.C.  213.    The  first  proposition  concerning 


mm 


Ol'ERTV. 


LVON    V.   BERTRAM. 


739 


he  thirteenth 
ct  to  the  exi- 
was  no  com- 
wenty-elghth 
isal  to  accept 
account  took 

jur  as  Haxall 

t  mills  which 

1    have    been 

value  of  that 

iw  V.  Robins, 

t-as  entitled  to 

sad.  Cases,  i, 
Bliiy,  2  B.  & 
'59'  where  an 
dee  has  three 
le  may  refuse 
it  and  bring  a 
ie  may,  with- 
f  warranty   in 
the  vendor  for 
nt  it  was  once 
n  in  Curtis  v. 
r  the  breach  of 
,  and  if  he  had 
e,   which   was 
s  overruled  by 
;  v.   Denton,  i 
the  noncompli- 
ising  to  receive 
it,  and  suing  to 

rned  author  are 

of   this   court. 

ed  by  Withers 

tion  concerning 


the  right  of  the  purchaser  to  reject  the  article,  because  it  varies 
from  the  warranty,  is  an  open  question.  In  Dawson  v.  Coliis, 
lo  C.  B.  537  (70  Eng.  CI.),  the  judges  dissent  from  it.  The 
chief  justice  expressed  his  favor  for  the  conclusion  "  that  the 
luiyer  has  no  right  to  repudiate  the  article,"  because  it  did  not 
correspond  to  the  warranty,  and  Creswell,  justice,  said  ;  "Where 
the  rule  is  of  an  individual  and  specific  thing,  the  vendee  can 
only  defend  himr.elf  altogether  against  an  action  for  not  accept- 
ing it,  if  the  thing  be  utterly  worthless,  as  in  Poulton  v.  Latti- 
niore,  or  in  part  by  giving  the  breach  of  warranty  in  evidence 
in  reduc  ion  of  damages."  And  this  corresponds  with  the  con- 
clusions of  this  court  in  the  case  of  Thornton  v.  Winne,  i3 
Wheat.  183,  where  very  similar  language  is  used. 

But  while  the  first  proposition  of  the  note  in  the  leading  cases 
is  a  matter  of  dispute,  there  is  none  in  respect  to  the  conclusion 
that  the  purchaser,  who  has  received  and  used  the  article,  and 
derived  a  benefit  from  it,  can  not  then  rescind  the  contract. 
This  principle  is  stated  in  Hunt  v.  Silk,  5  East,  449,  in  which 
Lord  Ellenborough  says:  "Where  a  contract  is  to  be  rescinded 
at  all,  it  must  be  rescinded  in  toto.  and  the  parties  put  in  static 
(/HO.''  And  "if  the  plaintiff  might  occupy  the  premises  two 
days  beyond  the  time  when  the  repairs  were  to  have  been  done, 
and  the  lease  executed,  and  yet  re.nind  the  contract,  why  might 
he  not  rescind  it  after  a  twelvemonth  on  the  same  account? 
This  objection  can  not  be  gotten  rid  of.  The  parties  can  not 
be  put  in  statu  quo."  In  Perley  v.  Balch,  23  Pick.  283,  the 
same  principle  is  applied  to  contracts  of  sale  of  chattels.  The 
court  say:  "  The  purchaser  can  not  rescind  the  contract  and 
yet  retain  any  portion  of  the  consideration.  The  only  excep- 
tion is  where  the  property  is  entirely  worthless  to  both  parties. 
The  purchasers  can  not  derive  any  benefit  from  the  purchase 
and  yet  rescind  the  contract.  It  must  be  nullified  in  toto  or  not 
at  all.  It  can  not  be  rescinded  in  part  and  enforced  in  part." 
In  Barnett  v.  Stanton,  2  Ala.  1S3,  the  court  say:  "A  con- 
tract can  not  be  rescinded  without  mutual  consent,  when  cir- 
cumstances have  been  so  altered  by  a  part  execution  that  the 
parties  can  not  be  put  in  statu  quo,  for  if  it  be  rescinded  at  all, 
it  must  be  rescinded  in  toto."  To  the  same  effect  is  Christy  v. 
Cummins,  3  McLean,  386;  2  Hill,  N.  Y.  288,  per  Ch.  J.  Nel- 
son; Kase  V.  John,   10  Watts,  107.    In  Thornton  v.  Wynn,   .2 


■ 


740       MODKS  OK   Om-AINING    111  I.E  TO  PKKSONAL  I'KOl'ERTV. 

Wheat.  I  S3,  this  court  say:  "  That  if  the  sale  of  a  chattel  hv 
absolute,  and  tliere  be  ro  subsequent  agreement  or  consent  ol 
the  vendor  to  take  l.>ack  the  article,  the  contract  remains  open, 
and  the  vendee  is  put  to  his  action  upon  the  warranty  unless  it 
be  proved  that  the  vendor  knew  of  the  unsoundness  of  the  arti- 
cle, and  the  vendee  tendered  a  return  in  a  reasonable  time." 

If  the  verdict  had  found  that  the  defendant  had  sustained  any 
damage  from  the  difference  in  the  brands  on  the  Hour,  the  price 
would  have  been  diminished  accordingly,  and  so  the  defendant 
might  have  been  indemnified  upon  an  action  commenced  by 
himself,  alleging  a  breach  of  the  contract.  But  without  con- 
sidering whether  he  could  refuse  to  accept  any  portion  of  the 
flour  for  the  variance  from  the  letter  of  his  contract,  we  decide 
that  he  lost  this  power  when  he  applied  to  have  paid  for  and 
sold  the  parcels  on  the  twenty-fifth  and  thirty-first  of  January, 

1853. 

The  defendant  pleaded  that  the  several  causes  of  action  in 
the  complaint  mentioned  did  not  accrue  within  two  years  before 
the  commencement  of  the  suit.      The  Code  of  California  pro- 
vides that  an  action  upon    any    contract,  obligation,  or  liabil- 
ity,   founded    upon    an    instrument  of    writing,    except   those 
mentioned   in   a  preceding  section,   shall    be   brought    within 
three  years,  and  within  two  years  if  founded  upon  a  contract, 
obligation,  or  liability,  not  in  writing,  except  in  actions  on  ai. 
open  account  for  goods,  wares,  and  merchandises,  and  for  any 
article  charged  in  a  store  account.      The  plea  of  the  defendant 
does  not  allege  that  the  cause  of  action  is  founded  upon  a  con- 
tract, obligation,  or  liability,  not  in  writing,  nor  show  that  it 
falls  within  the  limitation  of  two  years,  as  pleaded.     The  com- 
plaint  is   framed   so   as  to  admit    evidence  of   a   contract   in 
writing  quite   as  well   as  an  oral   contract,  and  the  evidence 
shows  this  action  is  founded  on  a  written  contract.     The  plea 
should   have  contained   an   averment  that  the  cause  of  action 
was  not  in  writing,  with  such  other  averments  as  to  show  that 
the  bar  of  the  statute  pleaded  was  applicable. 

A  plea  can  not  be  sustained  which  rests  for  its  validity  upon 
a  supposed  state  of  facts  which  may  not  exist.  The  plea  must 
be  an  answer  to  any  case  which  may  be  legally  established 
under  the  declaration.  Winston  v.  The  Trustees'  University, 
etc.,   I  Ala.  134, 


mm 


■HOPEIITV. 

)f  a  chattel  I'c 
or  consent  ol 
remains  open, 
ranty  unless  it 
ESS  of  the  arti- 
able  time." 
sustained  any 
Hour,  the  price 
the  defendant 
commenced  by 
t  without  con- 
portion  of  the 
-act,  we  decide 
;e  paid  for  and 
rst  of  January, 

ses  of  action  in 
vo  years  before 
California  pro" 
ation,  or  liabil- 
,    except   those 
brought    within 
ipon  a  contract, 
in  actions  on  ai. 
es,  and  for  any 
if  the  defendant 
led  upon  a  Con- 
or show  that  it 
led.     The  com- 
f   a   contract  in 
id  the  evidence 
ract.   .  The  plea 
cause  of  action 
i  as  to  show  that 


LYON    V.    riEllTHAM. 


71' 


It  was  objected  that  the  proof  shows  that  the  assignment  by 
I'lint,  reabody&  Company  was  made  to  the  plaintiffs  in  the  suit, 
;,nd  that  the  declaration  alleges  that  they  assigned  their  inter- 
ist  in  the  claim  to  John  Bertram,  one  of  the  plaintiffs.  The 
Code  of  California  requires  that  actions  shall  be  prosecuted  in 
the  name  of  the  real  party  in  interest,  and  that  all  parties  hav- 
ing an  interest  in  the  subject  of  the  action  and  in  obtaining  the 
relief  demanded,  may  be  joined  as  plaintiffs.  The  plauitiffs 
are  shown  tr  be  the  parties  jointly  interested  in  the  subject  of 
the  action,  and  in,  the  claim  for  relief.  It  is  quite  immaterial 
in  what  proportions  they  may  be  concerned.  Their  case  is 
substantially  established  when  their  joint  interest  is  shown,  and 
the  error  in  respect  to  the  degree  of  the  interest  of  the  several 
parties  is  not  such  a  variance  as  will  be  considered. 

Judgment  affirmed. 

Consult— Pope  v.  Allis,  115  U.  S.  363;  Underwood  v.  Wolf,  131  111. 
437;  McClurev.Jefferson,  8s  \Vis..!o8;  Fairbank  Canning  Co.  v.  Met/.- 
gar,  118  N.  Y.  260;  Bryant  v.  Isburgh,  13  Gray,  607;  Branson  v.  Tur- 
ner, 77  Mo.  4S9. 


s 


its  validity  upon 

The  plea  must 

gaily  established 

tees'  University, 


rJ7J».v  f,7Ei.  1 


^mAim 


